The Colorado Supreme Court heard oral argument this morning in Coats v. Dish Network, LLC, 13SC394.  The central issue in the case is whether the Colorado Lawful Activities Statute includes federal law.  The Lawful Activities Statute provides that employers may not discriminate against employees for their “lawful” off-work activities.  The employer (and the Colorado Court of Appeals) argues that “lawful” in this statute excludes conduct that is unlawful under Federal law, as well as conduct that is unlawful under state law.  Coats disagrees.

Coats used medical marijuana, pursuant to Colorado’s medical marijuana amendment. He tested positive for THC in a random workplace drug test, and the employer discharged him pursuant to a zero-tolerance policy.  Complicating the case is the fact that the parties never got far enough in the litigation to create any evidence.  The trial court dismissed the case based only on the Complaint and the law.  Therefore, as the Coats attorney pointed out in his argument, the Court cannot rely on the employer’s written drug-testing policy or on facts about notice to Coats about medical marijuana being covered by the policy.

Other arguments at Court included (a) whether the “use” of medical marijuana includes enjoying the effects of medical marijuana or ingesting marijuana, (b) whether the “mere presence” of THC in an employee is “use,” (c) whether the provision of the Colorado medical marijuana amendment that says employers need not “accommodate” medical marijuana use in the workplace means that employers need not change their zero tolerance policies, (d) whether employers should limit zero tolerance policies to employees who work in hazardous positions, and if so, who decides on the level of hazard and the level of impairment, (e) whether Coats was discharged because of any activity he engaged in off work or because of a substance in his blood stream when he reported for work, and (f) whether requiring employers to determine the presence of psychoactive marijuana-related substances would turn all Colorado employers into phlebotomists.

In the end, the point the Court is likely to reach is whether the Colorado Legislature meant the word “lawful” to include “lawful under federal law.” Coats says employment is a traditional area of state sovereignty and so “lawful” means “lawful in Colorado.”  Dish Network says “lawful” means “lawful generally.”  Don’t expect any legal decision much broader than that.