The Colorado Court of Appeals recently held that an employee can be fired for testing positive for medical marijuana use, even though it occurred off the job, it was legal under state law, and the employee was never under the influence of marijuana while working.

In Coats v. Dish Network, LLC, the plaintiff filed suit against his former employer, alleging that his discharge violated Colorado’s Lawful Activities Statute. The statute prohibits an employer from terminating an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours.” The plaintiff, a quadriplegic, argued that he used marijuana within the limits of his State-issued medical marijuana license, never used the drug in the workplace, and was never under the influence of marijuana while at work. The plaintiff’s position was that his marijuana use was “lawful activity” because it was lawful under Colorado state law.

The Court of Appeals, however, found that for an activity to be “lawful” within the meaning of Colorado’s Lawful Activities Statute, the activity must be lawful under both state and federal law. The court held that because the plaintiff’s marijuana use at the time of his termination was unlawful under federal law, even though it was lawful under state law, it was not “lawful activity” within the protection of the statute.

The decision clarifies for Colorado employers that they can maintain and enforce substance abuse policies prohibiting marijuana use even when an employee has a State-issued license to use medical marijuana. With the decision, Colorado aligns with courts in California, Oregon, Montana, Washington, and the Sixth Circuit on this issue. In contrast, Arizona, Connecticut, Delaware, Maine, and Rhode Island generally provide employees with statutory protection against adverse employment action based on medical marijuana use. Eight other states and the District of Columbia have enacted statutes permitting the use of medical marijuana but have not yet addressed whether an employer is required to accommodate or permit use of medical marijuana during off-duty time.

If you have questions on the court’s decision, please contact Leslie A. Eaton at 303.299.7302 or eaton@ballardspahr.com, Erin K. Clarke at 215.864.8318 or clarkee@ballardspahr.com, or the member of the Labor and Employment Group with whom you work.