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Colorado Supreme Court Says Employer May Terminate For Medical Marijuana Use

June 16, 2015

By Michael G. McClory

By now, most of you have heard the popular no-marijuana-in-the-workplace song “Medical Airhead Need Not Apply”. It has been an easy listening hit in several states. However, when the Colorado Supreme Court sang it yesterday the judges gave it a bit of an alt-country flavor. As we will discuss, while the song remains the same, there is a funkiness to the beat. There also is a possibility of a remix in Colorado or some other state.

The backdrop to this mellow-doobie workplace classic is familiar. 
  • Employee is selected for random drug test pursuant to employer’s drug and alcohol policy. 
  • The employee tests positive for marijuana, which is a violation of the policy. 
  • Employee offers a medical marijuana explanation for the positive test, but employer terminates his employment. 
  • Former employee files a discrimination lawsuit.

Each time we have heard this song in the past it has been sung with an easy listening refrain.

For example, in 2010 the Oregon Supreme Court sang a ditty called Emerald Steel Fabricators, Inc. v. BOLI and the refrain went like this:

♫Oregon employers are not required to accommodate the medical use of marijuana and are not required to engage in the interactive process regarding potential accommodations.♫

Similarly, the Washington Supreme Court’s 2011 hit Roe v. TeleTech Customer Care also hit the same notes in refrain:

♫Washington’s Medical Use of Marijuana Act (MUMA) does not create any employment protections for applicants or employees.♫

Years before, the godfather of pot singers, the California Supreme Court, had a 2008 hit with Ross v. RagingWire Telecomm., Inc. In Ross, 5 of 7 judges sang:

♫California’s Compassionate Use Act allows medical marijuana without fear of prosecution. However, it “simply does not speak to employment law” and does not create a FEHA claim for failure to accommodate. Case dismissed.♫

The Colorado Supreme Court Decision
While the Colorado Supreme Court’s version covers the same story, the refrain is a bit different in Coats v. Dish Network. As noted above, the story here is familiar. From 2007 until it terminated him in 2010, Dish Network employed Brandon Coats as a telephone customer service representative. In May 2010 Mr. Coats was randomly tested pursuant to the company’s drug and alcohol policy. After he tested positive for marijuana, Mr. Coats, who is a quadriplegic, explained that since 2009 he had been using marijuana at home, consistent with the state medical marijuana law, to treat painful muscle spasms. Dish Network terminated his employment for violation of its drug policy.

Mr. Coats sued, alleging that Dish Network unlawfully terminated in violation of a state statute that prohibits an employer from discharging an employee based on the employee’s engagement in “lawful activities” away from the workplace during nonworking hours (see CRS 24-34-402.5, which we will call the Lawful Activities law). Unfortunately, the Lawful Activities law does not define the term “lawful activities” and this lack of definition led to predictable arguments. Mr. Coats contended he had been engaged in a lawful activity since he had used marijuana pursuant to Colorado’s medical marijuana law. Dish Network countered that marijuana use is not a lawful activity since marijuana remains an illegal drug under federal law. 

The courts uniformly sided with Dish Network. The trial court dismissed the complaint, finding that Colorado’s medical marijuana law provided registered patients an affirmative defense to state criminal prosecution without making their use of medical marijuana a lawful activity. The Colorado Court of Appeals agreed, emphasizing that to be lawful for purposes of the Lawful Activities law an activity must be lawful under both state law and federal law. Since marijuana remains illegal under federal law, use of marijuana is not protected by the state’s “lawful activities” statute. The Colorado Supreme Court affirmed. “In sum, because Coats’s marijuana use was unlawful under federal law, it does not fall within section 24-34-402.5’s protection for ‘lawful’ activities.”

Two Comments About The Decision
In so holding, though, the Colorado Supreme Court outlined a potential path for workplace protections. Specifically, the court’s holding depends on its conclusion that the state Lawful Activities law does not offer protection for activities that are lawful under state law only. Here is what the court said:

“We do not read the term ‘lawful’ to be so restrictive. Nothing in the language of the statute limits the term ‘lawful’ to state law. Instead, the term is used in its general, unrestricted sense, indicating that a ‘lawful’ activity is that which complies with applicable ‘law,’ including state and federal law. We therefore decline Coats’s invitation to engraft a state law limitation onto the statutory language.”

While the court was unwilling to aggressively interpret the Lawful Activities law, it left open the possibility that the outcome of a future case could be different if the Lawful Activities law were to be amended to protect actions that were lawful under either state or federal law. 

Additionally, The Bullard Edge finds it interesting that the term “reasonable accommodation” does not appear in the decision. Mr. Coats did not argue that he is an individual with a disability, that he uses medical marijuana to treat his disability, and that his employer should have reasonably accommodated that use by excusing him from having to comply with the drug policy. That was the gist of the “easy listening” holdings in California, Oregon and Washington. Those were clear wins for the employers and it is unclear whether Coats v. Dish Network indicates a change in approach for marijuana proponents. We will keep trying to read the tea leaves and report.

Best regards,

The Bullard Edge