The Supreme Court Speaks: Marijuana Use Not “Lawful Off-duty Conduct”


The Colorado Supreme Court issued a ruling yesterday that allows employers to enforce zero-tolerance drug policies, even in the face of Colorado’s medical and recreational marijuana laws. In Coats v. Dish Network, the Court found that medical marijuana use is not a “lawful activity” and thus employees are not protected under Colorado’s “lawful activities” statute.

What Happened?
Brandon Coats is a quadriplegic who worked for Dish Network. Coats has a state-issued license for medical marijuana to treat painful muscle spasms caused by his quadriplegia. Coats consumed marijuana at home, after work, and in accordance with ​Colorado law. However, Dish Network has a zero-tolerance drug policy, so when Coats tested positive for marijuana in a random drug test, he was terminated.

Coats filed a wrongful termination lawsuit arguing that Dish violated C.R.S 24-34-402.5, Colorado’s statute that prohibits employers from terminating an employee because that employee engaged in a lawful activity off the premises during non-working hours. The trial court dismissed the suit because marijuana use is still illegal under federal law. The Court of Appeals upheld the trial court decision, and the Colorado Supreme Court affirmed, stating that medical marijuana consumption is not a “lawful activity” under the statute, and employees are not protected from discretionary discharge for marijuana use.

What Does this Mean?
This case is one of many wrongful termination lawsuits that have been filed against employers since the enactment of Colorado’s Amendment 64. The courts have remained consistent upholding employers’ right to terminate employees because marijuana is still an illegal substance under federal law, notwithstanding the State’s acceptance of medical and recreational pot use.

Bottom Line for Employers
Although the Supreme Court decision is unsurprising, this is still a fairly major win for employers because this was a “worst case scenario” suit. Coats is a singularly sympathetic plaintiff – a wheelchair-bound quadriplegic with an unarguably legitimate need, who stayed within the letter of Colorado law. Furthermore, the decision at the Appeals level was a split-decision with Judge Webb authoring a compelling dissent.
The bottom line, however, is that employers can continue to enforce anti-drug policies without running afoul of Colorado marijuana laws. Moreover, since marijuana use remains controversial, public and political outcry over pot-based terminations appears minimal. It is likely that Congress will re-examine marijuana’s illegal status eventually, but until then, the decision to terminate for off-duty marijuana use is up to the employer.