Colorado, like many states, prohibits employers from discharging an employee for the employee’s “lawful” off-work activities. Since Colorado ended criminal penalties for certain medical uses of marijuana, several people who failed drug tests have sued their former employers, arguing that the employers discharged them for their “lawful” use of medical marijuana. Also, the passage of Amendment 64 last November raised the possibility that the same arguments would be made by “off-work” recreational users of marijuana. The Colorado Court of Appeals has ruled that the use of medical marijuana is still not “lawful” for purposes of the lawful off-work activities statute, because marijuana use is prohibited by federal law. Armed with a dictionary, the court found conduct that violates federal law is not “lawful,” even if the state does not forbid it. Coats v. Dish Network, L.L.C., 2013 COA 62 (Colo. App. April 25, 2013).
The Colorado Court of Appeals made this issue look easy, but a dissenting opinion from one judge would have protected employees who exercised liberties under Colorado, regardless of federal prohibitions. We expect someone to petition the Colorado Supreme Court on the issue.