Major Marijuana Case Decided in Employers’ Favor

This morning, the Colorado Supreme Court handed down its decision in Coats v. Dish Network (Colo. 2015), affirming the Colorado Court of Appeals by holding that marijuana’s illegal status under federal law means its use is not protected under state law as a lawful, off-duty activity. It took the court more than eight months since oral arguments to publish its decision in what is certainly the most important case on marijuana and employment in the state’s history.

Brandon Coats is a quadriplegic who worked for Dish Network as a customer service representative starting in 2007. He used marijuana while off-duty, pursuant to Colorado’s Amendment 20 regulating medical marijuana, to alleviate the symptoms of his condition. After a random drug test revealed the presence of THC in his system, Dish Network terminated him in 2010.

Coats filed suit against Dish Network in 2011, alleging that by terminating him for his off-duty use of marijuana, Dish Network violated Colorado’s lawful off-duty activities statute (CLODA). CLODA makes it generally illegal to terminate an employee for their lawful actions that occur off-duty.

At trial, the Arapahoe Court of Appeals held that CLODA did not make off-duty marijuana use legal, but only provided an affirmative defense to criminal prosecution. Undaunted, Coats took his case to the Colorado Court of Appeals, which issued an opinion in April of 2013. By then, Colorado had also passed Amendment 64, making recreational marijuana use and possession “legal” under Colorado law. Nonetheless, the Colorado Court of Appeals issued a decision that impacted both medical and recreational marijuana in Colorado, holding that CLODA would only protect activities that were legal under both state and federal law.

Coats next petitioned for and received review by the Colorado Supreme Court on two issues:

  • whether Colorado’s lawful off-duty activities statute “protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance,” and
  • whether the State’s medical marijuana amendment to the Colorado Constitution “makes the use of medical marijuana ‘lawful’ and confers a right to use medical marijuana to persons lawfully registered with the state.”

In construing CLODA’s language, the court looked to the language of the statute itself “with a view toward giving the statutory language its commonly accepted and understood meaning.”

“We therefore agree with the Court of Appeals,” the court said, “that the commonly accepted meaning of the term ‘lawful’ is ‘that which is ‘permitted by law’ or, conversely, that which is ‘not contrary to, or forbidden by law.’”

The court declined to accept Coats’s argument that the General Assembly, in drafting CLODA, intended the term “lawful” to mean “lawful under Colorado state law.” “In sum,” the court wrote, because Coats’s marijuana use was unlawful under federal law, it does not fall within [CLODA’s] protection for ‘lawful’ activities.”

Having decided the case under federal law, the court declined to address the second issued bulleted above.

While the court’s decision is not surprising, it solidifies—for now—employers’ ability to terminate employees for marijuana use in or out of the workplace. However, the issue is far from over for employers, as marijuana’s legal status is certain to evolve for years to come.