Despite being the first state to legalize recreational marijuana, Colorado took a different turn when its Supreme Court held that employees can be terminated for consuming marijuana, even for prescribed medical purposes.
Colorado resident Brandon Coats began his prescription for medical marijuana in 2009 to treat muscle spasms caused by his quadriplegia. He only took his medication after he had returned home from his job at Dish Network. In 2010, however, Coats was terminated by Dish upon failing his drug test. Coats, believing that Dish violated Colorado’s “lawful off-duty activities” statute, sued Dish for unlawful discrimination.
The “lawful activities” statutes of Colorado, New York, and California, protect employees from being terminated for engaging in any “lawful” activity while off the employer’s premises and outside of working hours. Eight other states, such as Illinois and Nevada, use “lawful substances” statutes, limiting protection for consumption of lawful substances, rather than all activities. Colorado is the first of these states to answer the question as to whether an activity must be permissible on both the state and federal levels to be “lawful” under the “lawful activities” statute.
According to the opinion in Coats v. Dish Network, No. 13SC394 (Colo. June 15, 2015), “the term ‘lawful’ as it is used in [the lawful activities statute], is not restricted in any way, and we decline to engraft a state law limitation onto the term.” Employers, therefore, are free to terminate employees for activities that are lawful under the state and local laws, but are not lawful under federal law. Because the federal government still classifies marijuana as an unlawful narcotic, state-level legalization cannot by itself give patients protection from termination.
This decision could act as a precedent for the states that have recently legalized marijuana for medical use. Courts in New York and California, which have legalized medical marijuana, may be tempted to use Colorado’s decision as the basis for their own legal opinions once an employee in either of these states is terminated for the consumption of prescribed marijuana. As more states continue to follow the trend of legalizing medical marijuana, they will each have to answer whether federal laws are to be a factor in “unlawful” activities or substance statutes.
Until medical marijuana is federally legalized, employers must be aware that they could be deemed discriminating for terminating an employee who is using marijuana in reliance on a state-permitted prescription.