Colorado Supreme Court Tackles Medical Marijuana

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The Colorado Supreme Court, one-week ago, issued a highly anticipated decision implicating employment law related decisions as they pertain to employees using lawful medical marijuana for activities outside the course and scope of employment. In the decision of Coats v. Dish Network, the Colorado Supreme Court, for the first time, provided its position on whether employers could make adverse employment actions against its employees who are lawfully using medicinal marijuana away from work. The Court held that even though medical marijuana is “lawful” activity in Colorado, such activity is not “lawful” under the federal law. As a result, employees may not assert protections under the Colorado Lawful Activities Statute.

In Coats, the Plaintiff filed a lawsuit against Dish Network for discharging him for his use of medical marijuana, green-cross-thmbR medical marijuana to treat painful muscle spasms caused by his quadriplegia.   Between 2007 and 2009, the Plaintiff worked for Dish Network as a telephone customer service representative. In May 2010, the Plaintiff tested positive for tetrahydrocannabinol (“THC”) during a random employee drug test. The Plaintiff informed Dish Network that he was a registered medical marijuana patient. Dish Network terminated the Plaintiff for testing positive for THC as a violation of the company’s drug policy.

The Plaintiff alleged a wrongful termination claim against Dish Network, pursuant to C.R.S. 24-34-402.5, which generally prohibits employers from discharging an employee based on his or her engagement in “lawful activities” off the premises of the employer, during nonworking hours. The case was dismissed by the trial court finding that, while medicinal marijuana was legal under state law, it was still illegal under federal law and thus, not a lawful activity. The Colorado Supreme Court has affirmed this decision and agrees with this conclusion.

Accordingly, the take away for Colorado employers is simple. Colorado employers may continue to enforce their drug policies against their employees who use medicinal marijuana and any adverse employment actions taken against them will not violate Colorado’s Lawful Activities Statute. It should be noted that this decision specifically did not address use of recreational marijuana, which Colorado has also made lawful. Nevertheless, it would be anticipated that the Court would treat recreational use no differently.  In other words, because both medical and recreational uses are still illegal under federal law, such activities still will not be “lawful” to support a claim under the Lawful Activities Statute.

For those interested in reading the opinion, please click the link below:

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC394.pdf