By Marc R. Jacobs

In a closely watched case, the Colorado Supreme Court ruled that an employer could lawfully terminate an employee who tested positive for marijuana in a random drug test, even though the employee’s use of marijuana was off-duty and prescribed under Colorado’s Medical Marijuana Amendment. Coats v. Dish Network, LLC, 2015 CO 44 (2015).

Brandon Coats is a quadriplegic. In 2009, he obtained a Colorado state-issued license to use medical marijuana to treat painful muscle spasms.  He consumed the prescribed medical marijuana in accordance with his license and the state law.  He was employed by Dish Network from 2007 to 2010 as a telephone customer service representative.  In May 2010, Coats tested positive for a component of medical marijuana during a random drug test.  He informed Dish that he was a registered medical marijuana patient and would continue to use it.  Dish terminated his employment under its drug policy.

Coats sued Dish, claiming that he was wrongfully terminated under Colorado’s “lawful activities statute” (Colo. Rev. Stat. Section 24-34-402.5) which generally prohibits the discharge of an employee based on the person’s “lawful” off-duty activities.  Coats essentially argued that because his use of medical marijuana was “lawful” and protected under Colorado law, the termination violated the lawful activities statute.  The trial court and appellate court rejected his claim.

In a unanimous decision (one justice did not participate), the Colorado Supreme Court affirmed the dismissal of Coats’ lawsuit.  Although Coats’ use of medical marijuana was lawful under Colorado’s medical marijuana law, marijuana is a “controlled substance” under the federal Controlled Substances Act and its use, even for medicinal purposes, is a federal criminal offense.  As a result, the Court held that Coats’ use of medical marijuana was not “lawful” and he was not protected from termination because of his use of medical marijuana.  The Court also rejected arguments that use of medical marijuana was no longer unlawful because: (a) the U.S. Department of Justice announced that it will not prosecute certain patients who use medical marijuana in accordance with state law; and (b) in December 2014, Congress passed an appropriations bill that prohibits the Department of Justice from using funds appropriated under the act to prevent states with medical marijuana laws (like Colorado) from implementing those laws.

Although this decision is only binding in Colorado, it provides guidance that other courts likely will consider and follow when applying similar “lawful activities” statutes. For this Court, so long as marijuana is listed as a controlled substance under the federal Controlled Substances Act, its possession and use is unlawful and is not lawful activity under the state law.

We will continue to monitor and report on developments in this area of the law.