This blog is a follow-up to an article from November 20, 2012, which discussed the likely impact on employers’ drug-free workplace policies after Washington voters approved Initiative 502 which decriminalized marijuana use under state law.
Although medical and recreational marijuana use may be legal in Colorado (and Washington), the Colorado Court of Appeals recently held that employers can fire employees who test positive for marijuana even if the employee was not using marijuana at work, and was not impaired while at work.[i]
The Colorado case involved a quadriplegic Dish Network telephone operator, who was involved in a car accident as a teenager that left him paralyzed. He had been a medical marijuana patient since 2009, and Dish Network fired him after he failed a drug test for marijuana. The employee sued Dish Network to get his job back because he had a valid medical marijuana license, but the trial court dismissed his case because the judge agreed with Dish Network that medical marijuana use was not a “lawful activity” covered by a Colorado state law that protected employees from being fired for legal behavior outside of the workplace.
The employee appealed the trial court’s ruling to the Colorado Court of Appeals, and the appellate court affirmed the trial court. The Court of Appeals began its opinion by providing that marijuana use is illegal under federal law, and that the only question before it was whether marijuana use was considered a “lawful activity” under federal and state law. The Colorado “lawful activity” statute provides:
It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours…
C.R.S. 24-34-402.5(1). The statute did not define “lawful” or “lawful activity” so the court looked to the plain meaning of those words and determined that “lawful” meant activities “permitted by law.”[ii] Thus, the court reasoned that an activity was lawful only if it was permitted by both state and federal law. Marijuana use is still illegal under federal law, therefore, the court held that medical marijuana use was not a “lawful activity.”
The court also noted that the Colorado legislature could have fashioned the lawful activity statute to only apply to state laws, but that it did not and there was no indication that the legislature intended to prohibit Colorado employers from firing their employees when the employees engage in off-the-job activities that are illegal under federal law based on the legislative history, and other statutes that limited their applicability to state laws.
Comment: This case is similar to a case from Washington that held employers are not required to permit illegal activity in the workplace where an employee was fired after failing a drug test for marijuana even though the employee had a medical marijuana license.[iii] Based on these cases, employers are able to enforce their drug-free workplace policies prohibiting marijuana use (and other illegal substances) despite the fact that voters have decriminalized marijuana use in both Colorado and Washington because marijuana remains illegal under federal law.
[i] Coats v. Dish Network, LLC, 2013 WL 1767846, __ P.3d __ (April 25, 2013).
[iii] Roe v. Teletech Customer Care Mgmt., 171 Wn.2d 736, 257 P.3d 586 (2011).