Can I get fired for using medical marijuana off the job?
August 15, 2016
Under Colorado law, an employer cannot terminate an employee for engaging in lawful activity off the premises of the employer and during nonworking hours. What are the implications of this law when a Colorado employer with a zero-tolerance drug-use policy is confronted with an employee who uses medical marijuana? That was the issue before the Colorado Supreme Court in the case of Coats v. Dish Network decided in 2015.
To begin with the facts, Brandon Coats was an employee of Dish Network, LLC, who had a valid medical marijuana license under Colorado law. Coats was a quadriplegic and used medical marijuana for muscle spasms. He was employed by Dish Network for about three years, handling customer service telephone calls. He reportedly had good employee valuations and no disciplinary actions. He said that he never used marijuana while on the job or during work hours.
Dish Network had a zero-tolerance drug use policy and routinely tested its employees for drug use. After Coats tested positive for marijuana, he informed Dish Network that he was a registered medical marijuana patient and planned to continue using marijuana. In response, Dish Network terminated Coats for violating its policy and for no other apparent reason.
Coats then sued Dish Network under the aforementioned law, arguing that he was wrongfully terminated for engaging in lawful activities outside of work. He contended that medical marijuana is a lawful activity under Colorado state law and is protected by the statute. After Coats lost in the trial court and the Colorado Court of Appeals (on a split decision), the Colorado Supreme Court decided to hear the matter.
The court concluded that the term "lawful" as used in the statute is not restricted to being lawful under state law. Therefore, the use of medical marijuana, which is unlawful under federal law, is not a lawful activity under the statute. Indeed, under the Supremacy Clause, if there is a conflict between federal and state law, federal law applies, including in the area of marijuana regulation. This means there is no such thing as something being legal under state law if it is illegal under federal law. The court, therefore, affirmed the decision in Dish Network's favor and found that the lawful activities statute did not prevent Dish Network from terminating Coats under the circumstances.
The lesson from the Coats case is that an employee can be terminated for testing positive for marijuana under a zero-tolerance drug policy even though the employee's use of marijuana conforms with state law and occurs off premises and during nonworking hours. The Coats case follows other Colorado cases that have found in favor of employers on marijuana issues. For instance, a 2005 case held that an employee could be terminated for refusing to take a drug test despite her privacy concerns; a 2008 case upheld the denial of worker's compensation benefits to an employee who tested positive for marijuana use; and a 2011 case held that an employee who used medical marijuana was not entitled to unemployment benefits when he tested positive.
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Employers who wish to adopt a zero-tolerance stance should do so in a written policy communicated in advance … and employees who value job security would do well to heed the words of one judge's opinion on this topic: "the Colorado Constitution does not give medical marijuana users the unfettered right to violate employers' policies and practices regarding use of controlled substances."
Noah Klug is owner of The Klug Law Firm, LLC, in Summit County, Colorado. He may be reached at 970-468-4953 or Noah@TheKlugLawFirm.com.
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