On June 15, the Supreme Court of Colorado in Coats v. Dish Network ruled in a 5-1 opinion that Dish Network did not violate Colorado state law when it terminated Coats, a former employee and also a medical marijuana patient, for failing a drug test despite that the failure was caused by off-the-clock medical marijuana use. The statute at issue (CRS 24-34-402.5) generally makes it an unfair and discriminatory labor practice to discharge an employee based on the employee’s lawful activities outside of work. Because lawful is undefined in the Colorado statute, the court was required to determine the meaning of lawful as used in the statute.

In making its determination, the court rejected the argument that the term lawful must be interpreted according to state law rather than federal law. The court stated that nothing in the statute limits the term lawful to state law. To the contrary, the court held that under the plain meaning of the statute, “the term ‘lawful’ refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”

Further supporting its position, the court stated that the federal Controlled Substances Act (“CSA”) prohibits marijuana use and that there is no exception in the CSA for marijuana use conducted in accordance with state law. In accord with the Supremacy Clause of the U.S. Constitution, the court noted that federal law must prevail over a contradicting state law, even in the context of marijuana regulation.

With this ruling, Colorado now joins California, Montana and Washington as states in which courts have ruled against a medical marijuana patient fired for use of marijuana. The ruling by the Colorado Supreme Court provides Colorado employers safe ground for terminating employees for failing a drug test even if the employee is a medical marijuana patient and his use is off the clock.

Nationwide Marijuana and Tobacco Overview

Twenty-three states and the District of Columbia have passed laws allowing marijuana to be used for a variety of medical conditions. Alaska, Colorado, Oregon and Washington passed state initiatives legalizing the sale and distribution of recreational marijuana. District of Columbia voters approved an initiative permitting growth and possession but not sale of recreational marijuana.

Twenty-nine states and the District of Columbia have a smoker protection statute that prevents employers from taking certain actions against employees for using tobacco products. In four of those states, the protection is not specific to tobacco use but protects all legal off-duty activities. However, there are exceptions in some statutes that may permit more flexibility for health care providers.

Observations

Despite such legislation, as demonstrated by Coats and other cases referenced above, employers are generally free to implement whatever policy they choose regarding off-duty marijuana use by employees. Beyond the scope of an employment relationship, health care providers may encounter patients or residents who request to be permitted to use medical marijuana within a health care facility. Adopting a policy regarding such requests raises complex issues that require a careful balancing of legal, organizational and other interests.

Due to their special interest in encouraging healthful practices, health care employers may have similar flexibility with regard to tobacco use policies, depending on the specific state statutes. In Colorado, for example, although using tobacco is a legal off-duty activity, there is a statutory exception that may permit a hospital to adopt a no tobacco use policy for all employees even when off duty. Such a policy advances the mission of health care providers and may result in significant savings on health care costs. Careful evaluation of the local legal landscape is necessary before adopting tobacco use policies.