On June 15, 2015, in Coats v. Dish Network, No. 13SC394, the Colorado Supreme Court unanimously held under the plain language of C.R.S. § 24-34-402.5, Colorado’s “lawful activities statute,” that 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 the use of medical marijuana, permitted by state law but unlawful under federal law, are not protected by the statute. In doing so, Colorado’s highest court affirmed the split decision of the Colorado Court of Appeals. See Coats v. Dish Network, LLC, 2013 COA 62, 303 P.3d 147.

Background

This case, which was first addressed in an earlier Wilson Elser Alert, arises from the termination of Brandon Coats (Coats) by Dish Network, LLC (Dish) due to his state-licensed use of medical marijuana at home during nonworking hours. Coats is a quadriplegic who has been confined to a wheelchair since he was a teenager. In 2009, he registered for and obtained a state-issued license to use medical marijuana to treat painful muscle spasms caused by his quadriplegia.

Between 2007 and 2010, Coats worked for Dish as a telephone customer service representative. In May 2010, Coats tested positive for tetrahydrocannabinol (THC) during a random drug test. On June 7, 2010, Dish fired Coats for violating the company’s drug policy.

Coats filed a wrongful termination claim against Dish under Colorado’s “lawful activities statute,” which generally prohibits employers from discharging an employee based on engagement in “lawful activities” off premises and during nonworking hours. C.R.S. § 24-34-402.5. Coats contends that Dish violated this statute by terminating him based on his outside-of-work medical marijuana use, which he argued was “lawful” under Colorado’s Medical Marijuana Amendment, Colo. Const. art. XVIII, § 14.

Colorado Supreme Court Decision

The Colorado Supreme Court ultimately concluded that because the use of medical marijuana remains illegal under federal law, it cannot be deemed a “lawful” activity subject to protection under the Colorado statute. Having decided the case on the basis of the prohibition under federal law, the Court declined to address the issue of whether Colorado’s Medical Marijuana Amendment deems medical marijuana use “lawful” by conferring a right to such use.

Implications of the Decision

The decision by the Colorado Supreme Court appears to establish a per sedetermination that the use of medical marijuana is not “lawful” within the protection of the Colorado statute in light of the prohibition under the federal Controlled Substances Act. While the decision is somewhat narrow, its future interpretation could have far-reaching consequences. Left for future consideration are issues such as (1) how employers will be impacted if federal law changes legalizing marijuana, (2) whether medical marijuana use could be lawful under state law, and (3) how to measure marijuana use in a way that creates a presumptive inference of impairment at work. As more states legalize marijuana for medicinal and recreational use, the possibility that federal law also will adapt increases. Employers are left facing the challenge of how to define impairment from marijuana use as a lawful reason for termination.