Decisions Marijuana Use May Get You Fired Even Where Legalized

This past week the Colorado Supreme Court affirmed a lower court ruling which upheld the termination of a quadriplegic employee who used medical marijuana, in his own home while he was off duty. In Coats v. Dish Network, LLC., 2015 CO 44. No. 13SC394, the Colorado Supreme Court held that state's lawful activities statue would not protect the usage of medical marijuana by employees during their off hours since compliance is required with both state and federal law.

Coats v. Dish Network Facts

medical-marijuana-buds.jpgBrandon Coats is a quadriplegic who used his state licensed medical marijuana prescription at home to deal with seizures. Coats administered the marijuana during periods when he was not working for Dish Network. He claimed that that he was never "high" while on the job. As a result of testing positive for the presence of tetrahydrocannabinol ("THC") in a company required random drug test, Dish terminated his employment based upon its zero tolerance policy for drug use. Dish claims compliance with federal law in running a "drug free workplace." Coats was terminated as a result of the presence of marijuana in his bloodstream, regardless of whether the consumption was at home, during non-work hours, and not impaired by THC while on the job.

The American Disabilities Act and Colorado State Law

The American Disabilities Act was enacted as federal law to protect disabled persons from discrimination in the workplace. The state of Colorado furthered this effort by establishing 24-34-402.5, 14 C.R.S. (2014). The law prohibits an employer from terminating an employee who is conducting "lawful activity" during his or her own private time away from the premises of the employer.

24-34-402.5. Unlawful prohibition of legal activities as a condition of employment
(1) It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours unless such a restriction:
(a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; or
(b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

(2)(a) Notwithstanding any other provisions of this article, the sole remedy for any person claiming to be aggrieved by a discriminatory or unfair employment practice as defined in this section shall be as follows: He or she may bring a civil action for damages in any district court of competent jurisdiction and may sue for all wages and benefits that would have been due him or her up to and including the date of the judgment had the discriminatory or unfair employment practice not occurred; except that nothing in this section shall be construed to relieve the person from the obligation to mitigate his or her damages.

In 2001, the state of Colorado passed a constitutional amendment to permit consumption of medical marijuana. In 2012, two years after Coats was fired by Dish, the Colorado passed a statewide drug policy for cannabis (Amendment 64) which regulated recreational marijuana usage.

Federal Law Does Not Recognize Medical Marijuana

The Colorado statute which protects an employee from discrimination against conduct away from the workplace does not define the term "lawful activity." Coats asserted that his consumption of medical marijuana is "lawful" since he has a medical marijuana prescription and his consumption at home and during off hours was protected by state law.

Under federal law, the Controlled Substances Act under 21 U.S.C. § 844(a) prohibits the use of marijuana. It does not currently recognize a medically accepted use. Federal law considers marijuana a Schedule I substance in having "no medical accepted use, a high risk of abuse, and a lack of accepted safety for use under medical supervision." So while marijuana consumption may be lawful in the state of Colorado (or not unlawful with a prescription in 2010), the use and possession of marijuana is still technically a criminal offense under federal law. Given that there was no evidence that the state legislature intended otherwise, the court found that the plain meaning of the word "lawful" in the Colorado lawful activity statute refers to an employee's compliance with both state and federal law.

In light of this decision, employees and employers should carefully review company handbooks and drug testing policies. They should also take note of the differences in state law, especially where a company may have a presence in different states. While states which permit marijuana consumption or other conduct, a conflict with federal law may still exist and may impact perceived rights.
Legal Practice
Employment - Hiring & Firing
  1. California
  2. US Federal
About author
Michael Wechsler
Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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