The Colorado Supreme Court ruled today in a 6-0 decision that Colorado’s “lawful activities statute,” which provides protections to employees who engage in lawful off-duty conduct, only applies to conduct that is lawful under both state and federal law. The Court’s decision in Coates v. Dish Network, which can be accessed here, involved a quadriplegic man who is an authorized medical marijuana patient under Colorado’s medical marijuana law. There was no evidence of impairment at work, and the employee had a very good work record. The employer, Dish Network LLC, terminated the employee after he tested positive for marijuana in violation of Dish Network’s drug testing policy.
Colorado is one of only 4 states (along with Washington, Oregon and Alaska) to have legalized so-called “recreational marijuana,” and one of 23 states to authorize medical marijuana use. However, marijuana remains illegal under federal law for virtually all purposes, a fact that is unlikely to ever change unless Congress amends the federal Controlled Substances Act and/or carves out exceptions for state-authorized marijuana use. Because marijuana is illegal under federal law, the Colorado Supreme Court found that Dish Network didn’t violate Colorado’s lawful activities statute when it fired the employee. “The term ‘lawful’ refers only to those activities that are lawful under both state and federal law,” the Court held. “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.” It is worth noting that Colorado’s constitutional amendment legalizing recreational marijuana also expressly states that employers are not restricted from having zero tolerance policies for marijuana use.
The Colorado Supreme Court’s decision is consistent with decisions from the Supreme Courts of Washington State, Oregon and California, all of which have, to one degree or another, noted the public policy incongruity that would occur if a state workplace protection was predicated on an act that is illegal under federal law. The employer in the Washington Case, Roe v. Teletech, was represented by Stoel Rives and the decision was blogged here.
The bottom line is that, unless Congress either changes how marijuana is classified under the federal Controlled Substances Act or carves out protections for state-authorized medical marijuana users, employment law is not going to experience a sea-change on this issue. A handful of states (Arizona, Delaware, Maine, Rhode Island and Nevada among them) do have some workplace accommodation protections in their medical marijuana statutes, but most states do not. And in case you were wondering, an employer does not need to accommodate medical marijuana under the federal Americans with Disabilities Act because, you guessed it, marijuana is illegal under federal law.