The Colorado Supreme Court considered whether a state law prohibiting discrimination based on an employee’s “lawful” off-work activities applies to the employee’s use of medical marijuana as permitted under state law. Coats v. Dish Network, No. 13SC394 (Colo. June 15, 2015). Everyone agrees the plaintiff made a sympathetic case. He is a quadriplegic and used medical marijuana to ease painful muscle spasms caused by his condition. The employer however had a drug policy that made no exception for medical marijuana. When the plaintiff tested positive for THC in a random drug test, and affirmed that he planned to continue using the substance for his condition, the employer discharged him. He sued, alleging discrimination based on his “lawful” (in Colorado) off-work use of medical marijuana, but the Colorado Supreme Court has now ruled that his claim fails. As a matter of plain meaning, to be “lawful” an activity must comport with all applicable law – including both state and federal.

The ruling preserves employers’ zero-tolerance drug policies in Colorado and may provide useful support for employers in other states as well. So long as federal law classifies marijuana under the Controlled Substances Act, it is not “lawful,” even though the federal government chooses not to prosecute.