By Reed Morris
**[See Update Below]***
On April 25, 2013, the Colorado Court of Appeals upheld a firing of an employee for off-site use of medical marijuana in violation of company policy. In this split (2-1) decision by a three judge panel, the court found that the federally prohibited but state-licensed use of medical marijuana was not “lawful activity” under Colorado’s Lawful Activities Statute.
The full opinion can be read here (.pdf).
The plaintiff bringing this case, Brandon Coats, is a quadriplegic and licensed in Colorado to use medical marijuana under state law. Coats failed a drug test, which his employer (Dish Network) alleged violated the company’s drug policy. There was no evidence that Coats was ever under the influence of marijuana at work. The sole reason for his firing was violation of the company’s drug policy.
The Lawful Activities Statute, C.R.S., § 24-34-402.5(1), makes it 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…" subject to certain exceptions.
In examining the legislative history of Colorado’s Lawful Activities Statute, the court of appeals found that the general idea was to "keep an employer's proverbial nose out of and employees off-site off-hours business." However, the majority opinion found no legislative intent to protect a worker’s activity that violates federal law. This case turned on the definition of "lawful," which had not been defined or interpreted as specifying activities prohibited under state versus federal law.
This case did not address Colorado’s Amendment 64 allowing recreational marijuana use in Colorado. The General Assembly is currently debating legislation that will implement Amendment 64. The language of Amendment 64 specifically states that it is not “intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”
The lawyers for Brandon Coats have stated to several media outlets that they will ask the Colorado Supreme Court to review this decision. This recent case has important implications for Colorado business owners. We will update this post when and if the Colorado Supreme Court decides to hear the case on appeal.
** Update. On January 27, 2014, the Colorado Supreme Court agreed to hear an appeal of this case on the following two issues:
1) Whether the Lawful Activities Statute, section 24-34-402.5, protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance.
2) Whether the Medical Marijuana Amendment makes the use of medical marijuana “lawful” and confers a right to use medical marijuana to persons lawfully registered with the state.
See follow-up post on the procedural status of the case here.
Mallon & Lonnquist, LLC, is a business and real estate law firm. Reed F. Morris is a Colorado business and real estate litigation attorney with Mallon & Lonnquist, based in Denver, Colorado. Reed regularly represents businesses and individuals in disputes from pre-filing through trial and can be reached at firstname.lastname@example.org.