In a long-awaited and highly-anticipated decision, the Colorado Supreme Court unanimously upheld an employer’s termination of an employee who tested positive on a drug test due to his off-duty use of medical marijuana. Interpreting Colorado’s “lawful activities statute,” the Court held that the term “lawful” refers only to activities that are lawful under both state and federal law. Coats v. Dish Network, LLC, Case no. 13SC394 (June 15, 2015).

Brandon Coats was employed as a telephone customer service representative by Dish Network, LLC (“Dish”). In 2010, Coats received a medical marijuana license from the state to use marijuana to treat muscle spasms caused by his paraplegia. In May 2010, Coats tested positive for tetrahydrocannabinol (“THC”), a component of marijuana, during a random drug test. As a result, in June 2010, Dish fired Coats for violation of the company’s drug policy.

Subsequently, Coats filed suit, alleging wrongful termination under Colorado’s “lawful activities statute,” which generally prohibits employee discharge based on the employee’s engagement in “lawful activities” while the employee is off of the employer’s premises and during nonworking time. Coats argued that Dish terminated his employment for his off-duty use of medical marijuana, which was “lawful” under Colorado’s Medical Marijuana Amendment. The trial court, however, dismissed Coats’ claim, finding that the Medical Marijuana Amendment provided registered patients with an affirmative defense to criminal prosecution, but did not make their use of medical marijuana a “lawful activity” under the lawful activities law. On appeal, a split Court of Appeals affirmed the decision of the trial court, basing its decision on the illegality of marijuana under the federal Controlled Substances Act. Specifically, the Court of Appeals found that for a specific activity to be “lawful,” the activity must be permissible under both state and federal law. Because federal law prohibits the use of marijuana, Coats’ conduct could not be a “lawful activity” protected by the Colorado statute.

The Colorado Supreme Court agreed. Affirming the lower court’s opinion in a 6-0 ruling, the Court held that the term “lawful,” as used in the lawful activities statute, is not restricted in any way. As such, an activity that is unlawful under federal law, such as medical marijuana use, is not a “lawful” activity. The Court unanimously rejected Coats’ argument that the term “lawful” be read as limited only to those activities that are lawful under Colorado law, stating that it refused to “engraft a state law limitation onto the statutory language.” Because Coats’ use of medical marijuana was unlawful under federal law, his off-duty use of medical marijuana was not protected.

The Court also noted that although Congress recently passed a budget bill prohibiting the U.S. Department of Justice from using federal funds to prevent states from implementing medical marijuana laws, marijuana use still remains illegal under federal law.

While Colorado is viewed as one of the most liberal states in the country with regard to marijuana use, Colorado’s medical marijuana law provides that “nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” Even the state’s recreational marijuana statute provides that “nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.” Other states, however, have medical marijuana laws that expressly prohibit employment discrimination against medical marijuana users.

This case continues the trend of employer victories in medical marijuana cases. Employers have been successful in litigating medical marijuana cases in California, Colorado, Michigan, Montana, Oregon and Washington. Although public acceptance of medical marijuana is growing and more states continue to enact medical marijuana laws, the courts recognize that federal illegality is still a significant obstacle for marijuana users who wish to challenge their employer’s employment actions.