The Colorado Supreme Court has agreed to hear a case that will determine whether marijuana use, at least for medicinal purposes, is a lawful off-duty activity under Colorado’s statute that prohibits an employer from discharging an employee for engaging in any lawful activity off the premises of the employer during nonworking hours.  The decision will directly impact whether employers in Colorado can have and implement zero tolerance drug policies that include marijuana within their scope.

The case (Coats v. Dish Network) involves an employee who was terminated for failing a random drug test.  The employee tested positive for marijuana and the employer deemed this to be a violation of its zero tolerance drug policy.  The employee challenged the termination because he has a medical marijuana license and therefore his off-duty use was a “lawful activity” under Colorado’s Lawful Activities statute.  There was no dispute that the employee’s use was off-duty use and for medicinal purposes (significant because at the time of termination recreational marijuana had not been legalized in Colorado).  There was also no dispute that the employee was not impaired on the job.   The trial court dismissed the employee’s complaint and the Colorado Court of Appeals affirmed the dismissal reasoning that for an activity to be “lawful” under the Lawful Activities statute, it must be permitted by and not contrary to both state and federal law.  Since marijuana was (and still is) an illegal substance under federal law, the employee’s marijuana use was therefore not protected under the statute and the dismissal was deemed appropriate.

Since the time of the Court of Appeals decision employers have had a decent amount of certainty that they can implement and enforce zero-tolerance drug policies that include marijuana and the off-duty use of it.  Given the reasoning of the Court of Appeals and its reliance on the fact that marijuana was an illegal substance under federal law, the decision can reasonably be applied to the off-duty use of marijuana whether for medicinal or recreational purposes.  Employers therefore have been safe in their decision to maintain marijuana use within the scope of their zero tolerance policies despite the legalization of recreational marijuana in Colorado in 2012.

The Supreme Court of Colorado agreed to accept the Coats case to decide whether the Lawful Activities statute protects employees from discharge for lawful use of medical marijuana.  The Court will decide whether the amendment to the Colorado constitution that decriminalized medical marijuana use makes such use “lawful” and confers a legal right to use medical marijuana.  While possible that the decision will be limited to the medical marijuana context, it is likely that whatever the result, it will have applicability to recreational marijuana use as well.  The decision will either solidify the fact that employers may continue to have and implement zero tolerance policies that include marijuana use, or it will create a situation where employers will need to carve out certain exceptions to their zero tolerance policies, perhaps just for medical marijuana use, or for all marijuana use.    We will be watching the case closely but do not expect a decision until late summer or  fall of this year.  Until the decision, employers can continue to rely on the decision from the Court of Appeals and can continue to have zero tolerance policies that include marijuana as a prohibited drug.