The Colorado Supreme Court has now heard and decided a case (Coats v. Dish Network)critical to Colorado employers in terms of whether the legalization of marijuana in Colorado mandates an exception to zero tolerance drug policies. The Court decided in favor of the employer, ruling that marijuana use, at least for medicinal purposes, is not a lawful off-duty activity for purposes of receiving protection under Colorado’s lawful activities statute even though state law has legalized the use of marijuana for medicinal and recreational purposes. As a result, employers may continue to maintain and enforce zero tolerance policies that include marijuana within their scope.

The supreme court’s decision is premised on its determination that Colorado’s lawful activities statute (which prohibits the taking of action against an employee for engaging in lawful off-duty activities) covers only activities that are lawful under both state and federal law. Since marijuana is undisputedly an illegal drug under federal law, and since federal law has not created an exception for marijuana use for medicinal purposes or for marijuana use conducted in accordance with state law, Colorado’s statute does not protect employees who test positive for marijuana under a zero tolerance policy.

The Coats case involved an employee who was terminated for failing a random drug test. The employee tested positive for marijuana and the employer deemed this to be a violation of its zero tolerance drug policy. The employee challenged the termination because he has a medical marijuana license and therefore his off-duty use was a “lawful activity” under Colorado’s lawful activities statute. There was no dispute that the employee’s use was off-duty use and for medicinal purposes (significant because at the time of termination recreational marijuana had not been legalized in Colorado). There was also no dispute that the employee was not impaired on the job. The trial court dismissed the employee’s complaint and the Colorado Court of Appeals affirmed the dismissal reasoning that for an activity to be “lawful” under the lawful activities statute, it must be permitted by and not contrary to both state and federal law. Since marijuana was (and still is) an illegal substance under federal law, the employee’s marijuana use was therefore not protected under the statute and the dismissal was deemed appropriate.

While the Coats case fell within the realm of the use of medical marijuana, there is nothing in the supreme court’s opinion that would indicate that any different result would be reached if an employee tested positive for off-duty recreational marijuana use (also legal under Colorado law). Indeed, it would seem that if an exception was not found for medical marijuana use under the facts of Coats that there would be an even stronger basis to deny a challenge to a zero tolerance policy when the off-duty marijuana use was recreational.

Going forward, unless and until federal law is changed so as to either legalize marijuana use or to make exceptions for its use for medicinal purposes or where allowed by state law, employers in Colorado can feel secure in maintaining and enforcing zero tolerance drug policies that include marijuana as a prohibited drug despite the legalization of the drug under Colorado law.