On April 25, 2013, the Colorado Court of Appeals upheld an employer’s termination of an employee as a result of the employee’s use of marijuana off-premises during nonworking hours. Specifically, the court held that the Lawful Activities Statute, an employment discrimination provision of the Colorado Civil Rights Act, did not protect the terminated employee because his state-licensed medical marijuana use was subject to and prohibited by federal law.

Brandon Coats, a quadriplegic licensed to use medical marijuana in Colorado, was terminated from his employment with Dish Network when he tested positive for marijuana use, a violation of Dish Network’s drug policy. Brandon Coats v. Dish Network, L.L.C., Colorado Court of Appeals Nos. 12CA0595 and 12CA1704.

Mr. Coats claimed that his termination violated Colorado’s Lawful Activities Statute (C.R.S. § 24-34-402.5) as he was engaging in a lawful activity away from the employer’s premises during nonworking hours. The Court, however, found that “because plaintiff’s state-licensed medical marijuana use was, at the time of his termination, subject to and prohibited by federal law, we conclude that it was not ‘lawful activity’ for the purposes of section 24.34.402.5.” In addition, the Court found that the Colorado Lawful Activities Statute does not provide a claim for relief sounding in tort and that Dish Network therefore did not have a claim for attorneys’ fees under C.R.S. § 13-17-201.

The Coats decision comes as the Colorado Legislature is working to implement Amendment 64, which legalized the use and possession of up to one ounce of marijuana for adults in Colorado. While there are no doubt additional developments to come in this area, the Coats ruling supports Colorado employers’ enforcement of their drug and drug testing policies while making even off-duty use of marijuana a potentially risky proposition for employees.