Colorado OKs Firing Employees for Marijuana Use

The Colorado Supreme Court ruled today that employees who use medical marijuana outside of the workplace are not protected from discharge for violating a company’s drug policy.  In Coats v. Dish Network an employee was fired for violating the company’s drug policy when he tested positive for tetrahydrocannabinol (“THC”) during a random drug test.  The employee then filed a wrongful termination claim against Dish under CRS § 24-34-402.5, which generally prohibits employers from discharging an employee based on his engagement in “lawful activities“ off the premises of the employer during nonworking hours. CRS § 24-34-402.5(1).

By its terms the statute protects only “lawful” activities. However, the statute does not define the term “lawful.”  While marijuana use in Colorado is generally legal, the federal Controlled Substances Act prohibits medical marijuana use and lists marijuana as a Schedule I substance, meaning federal law designates it as having no medical accepted use, a high risk of abuse, and a lack of accepted safety for use under medical supervision.  The Colorado Supreme Court ruled that because the employee’s marijuana use was unlawful under federal law, it does not fall within CRS § 24-34-402.5’s protection for “lawful” activities.

It is important for employers and employees to recognize that while Colorado law may permit the use of marijuana, marijuana use is prohibited under federal law.  Colorado employers must ensure that all of its policies are communicated to its employees and  uniformly enforced.  Colorado employees must ensure that they are aware of their employer’s policies.

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