Colorado Supreme Court Finds Employers May Fire Medical Marijuana Users

Author: David B. Weisenfeld, XpertHR Legal Editor

June 15, 2015

In Coats v. Dish Network, the Colorado Supreme Court has ruled 6-0 that a medical marijuana user who was fired after failing a drug test cannot get his job back even though both recreational and medical marijuana use are legal in the state.

In the case, a quadriplegic man was fired in 2010 for violating the Dish Network's zero tolerance drug policy. He challenged his termination on the grounds that he did not use marijuana while at work and that off-duty marijuana use is permitted by Colorado law, which protects employees from being discharged for outside-of-work activities.

Although the court acknowledged that Colorado law permits medical marijuana use, it explained that an activity must be lawful under federal law as well as state law. Since there is no dispute that the federal Controlled Substances Act (CSA) prohibits medical marijuana use, the court found that the man's use of the drug was not a lawful activity that could protect him from being terminated.

The Department of Justice has announced it will not prosecute those with debilitating conditions, if they use medical marijuana in accordance with state law. However, the CSA does not yet include a medical marijuana exception. And, the Colorado Supreme Court viewed the CSA's lack of an exception as significant. The ruling in this case affirms a 2013 state court of appeals ruling in the employer's favor.

Speaking to XpertHR, Denver employment attorney Emily Hobbs-Wright of Holland & Hart said, "This is a very important day for Colorado employers. What this ruling does is it simplifies the issue for employers on a practical level."

According to Hobbs-Wright, it would have been "incredibly difficult" for employers had the ruling gone the other way because they would not have been able to discipline employees without showing actual impairment on the job. Although there was no evidence the employee in this case was impaired, Hobbs-Wright said "Zero tolerance enables ease of administration for employers."

The decision also could have implications well beyond Colorado as it could affect how employers treat employees who engage in recreational marijuana use as well as those who use it for medicinal purposes. However, Hobbs-Wright cautions employers that they still must put employees on notice and apply their drug-testing policies in a uniform manner.

In all, 24 states have legalized medical marijuana use. Meanwhile, four states - Colorado, Washington, Alaska and Oregon - plus the District of Columbia, have legalized recreational marijuana use in small amounts. However, none of those states' laws prevent employers from maintaining a drug-free workplace policy.