On April 25, 2013, the Colorado Court of Appeals held that the Colorado Lawful Activity statute does not prohibit an employer from terminating the employment of an employee for off-the-job use of medical marijuana. But one judge dissented from the decision, and the case seems poised for review by the Colorado Supreme Court.
In Coats v. Dish Network, L.L.C., case no. 12CA0595 & 12CA1704, Brandon Coats challenged his termination by Dish Network, L.L.C. after he tested positive for marijuana. Coats, a quadriplegic, was licensed by the State of Colorado to use medical marijuana pursuant to the state's Medical Marijuana Amendment to the Colorado Constitution. Coats alleged that he used medical marijuana within the limits of the license, and never on his employer's premises. He further alleged that he was never under the influence of marijuana at work.
Coats challenged his termination as a violation of the Lawful Activities Statute, C.R.S. section 24-34-402.5, which prohibits an employer from discharging an employee for "engaging in any lawful activity off the premises of the employer during nonworking hours," subject to certain exceptions. Dish filed a motion to dismiss, arguing that the use of medical marijuana was not "lawful activity" because it was prohibited under both state law and federal law.
The Colorado Court of Appeals began its analysis by recognizing that at the time of plaintiff's termination, all marijuana use was prohibited by federal law. Coats conceded that medical marijuana use is illegal under federal law, but argued that his use was nonetheless a "lawful activity" for purposes of section 24-34-402.5 because the statutory term "lawful activity" should be interpreted as referring to only state, not federal law.
Since the statute does not define the word "lawful", the Court began by looking at its ordinary meaning. The plain and ordinary meaning of "lawful" is that which is "permitted by law." Thus, because activities conducted in Colorado, including medical marijuana use, are subject to both state and federal law, for an activity to be "lawful" in Colorado, the Court recognized that it must be permitted by, and not contrary to, both state and federal law. Forbidding a Colorado employer from terminating an employee for federally prohibited off-the-job activity is of sufficient policy import that the Court was unwilling to infer, from plain statutory language to the contrary and silence in the legislative discussions, that the Colorado legislature intended to do just that. For that reason, because plaintiff's state-licensed medical marijuana use was, at the time of his termination, subject to and prohibited by federal law, the Court concluded that it was not "lawful activity" for the purposes of section 24-34-402.5.
Thus, based on this opinion, Colorado employers can continue to enforce a policy of zero-tolerance for drug use inside and outside of the workplace without violating the Colorado Lawful Activities Statute. However, employers should continue to monitor this case, as it seems like a prime candidate for review by the Colorado Supreme Court.
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