My organization has been following the Coats v. Dish Network case for the last couple of years. I understand that Mr. Coats lost his appeal to the Colorado Supreme Court. How does this affect us as employers?
The recent decision by the Colorado Supreme Court maintains the status quo for employers. In other words, it upholds the Colorado Court of Appeals decision allowing employers to terminate employees for marijuana use without having to demonstrate that the employee was impaired in the workplace. This is welcome news for employers, but the issue of marijuana and employment is far from settled.
Like many states, Colorado has a law—we’ll call it “CLODA” for the “Colorado Lawful Off-Duty Activities” statute—that prevents employers from terminating employees for engaging in lawful activity outside of the workplace. Brandon Coats argued that his use of medical marijuana was lawful under state law and therefore protected by CLODA, as long as the use took place while he was off-duty. The Colorado Court of Appeals, and then the Colorado Supreme Court, determined that CLODA would only protect activity that was lawful under federal law as well as state law. Therefore, CLODA did not protect off-duty marijuana use, as marijuana remains a highly illegal Schedule I controlled substance under the federal Controlled Substances Act.
However, marijuana’s status as a Schedule I controlled substance is hard to justify. The federal government places it in the same category as heroin and LSD and considers it more dangerous than methamphetamine and cocaine, both Schedule II controlled substances. How it got there is an interesting story, but suffice it to say, if marijuana’s status under federal law were to drastically change, marijuana might actually come under CLODA’s protection, meaning employers could no longer terminate an employee for testing positive for marijuana without other indicia of on-the-job impairment.
This is where a test for current marijuana impairment would really come in handy, but even in the absence of such a test, employers may be able to support a disciplinary action by combining a positive drug-test result with other contemporaneous indicators of impairment, such as smell, red eyes, or an abiding love for nacho-cheese-flavored Doritos.
All of this is speculation at this point, and employers should consider the legal status of marijuana as one less thing they need to worry about for the time being. But like everything, this, too, will probably change.
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