Medical and recreational marijuana is legal in Washington and Colorado; however, the highest courts in both states have ruled that employers can still discharge employees for using it.

Most recently, in Coats v. Dish Network, LLC, the Colorado Supreme Court ruled that Dish Network properly discharged an employee for failing a drug test. At the time of his discharge, Brandon Coats (who suffers from quadriplegia), held a valid Colorado license to consume marijuana for medical purposes. As a result of Coats’ positive test for marijuana, Dish discharged him for violating its zero tolerance drug policy. Coats did not use marijuana on Dish’s premises, he did not use it during working hours, nor was he under its influence while at work. Instead, Coats’ urine test detected traces of THC metabolites, the chemical residue of THC, which is the active ingredient in marijuana. These metabolites can remain in the body anywhere from several days to several weeks after last consuming marijuana.

Coats argued that Dish improperly discharged him for engaging in a legal activity. Colorado law prohibits an employer from discharging an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours” (the Lawful Activities Statute – 24-34-402.5). Under state law, Coats’ marijuana usage was completely legal. However, marijuana is an illegal controlled substance under federal law. The Colorado court ruled that, in determining what is lawful and unlawful under the Lawful Activities Statute, it must consider both state and federal law. Since marijuana consumption is illegal under federal law, the court found that Dish was within its rights to discharge Coats.

The Washington Supreme Court came to a similar conclusion in 2011, in Roe v. TeleTech Customer Care Management, which we previously covered here. Roe was discharged for testing positive for marijuana use under the company’s drug free workplace policy. The employee had legally consumed marijuana under Washington’s Medical Use of Marijuana Act. The court ruled that state law did not provide a claim for an employee discharged for use of medical marijuana. The court also made clear that Washington State’s Human Rights Commission would not investigate employee claims of discrimination due to medical marijuana use because federal law prohibits marijuana possession and use.

Coats and TeleTech show that courts are not likely to fault employers who discharge employees for failing a drug test, even if marijuana is legal under state law for medical or recreational use. As long as marijuana is a controlled substance under federal law, employees will likely have no protection against discharge for failing a drug test due to marijuana use. Indeed, Washington employers may establish drug-free workplace policies that prohibit marijuana use (i.e., prohibiting any detectable amount of any illegal substance, including marijuana, in one’s system). Washington law does not require an accommodation for medical use of marijuana if an employer has a drug-free workplace, nor does it limit an employer’s right to terminate employees for violating its drug policy.