For clients and friends of Jackson Kelly PLLC
Volume 11, Number 16
©2015 Jackson Kelly PLLC
On June 15, 2015, the Colorado Supreme Court held that the Colorado lawful activities statute protects only activities that are lawful under both state and federal law, thus siding with the employer, Dish Network, LLC (“Dish”). Dish had fired an employee for using doctor‑prescribed medical marijuana while off duty. While only binding in Colorado, the decision provides guidance to employers nationwide who face questions from employees about whether marijuana use, be it medical or recreational, falls outside a zero‑tolerance drug policy because use of the substance in their state is lawful. Most employers maintain that the answer is no‑such activity is not protected because it is against federal law to possess or use marijuana. The Colorado Supreme Court agreed.
Colorado’s lawful activities statute was initially passed into law in 1990 (H.B. 90-1123, amended in 2007 by S.B. 07-117). The law was designed to protect tobacco-smoker employees who smoke off duty, but who work for employers with no-smoking policies. The law, Colo. Rev. Stat. § 24-34-402.5, also protects things such as employee‑concerted activity, and making complaints off the work premises for safety violations on a work site. With the passage of lawful medical marijuana use in the State (Colo. Const. art. XVIII § 14), some employees tried to use the statute as a shield against adverse employment action for using marijuana off duty, as part of a medical regimen prescribed by a doctor. Because marijuana remains in the bloodstream after consumption for a longer period of time than other drugs, such as alcohol, an employer‑sponsored drug test may return a positive result for drug use even if the employee is not presently under the influence of marijuana. Even if the employee used marijuana on a weekend, when he or she was not on duty, employers could use this positive as a reason to terminate the employee.
Such a scenario played out precisely this way for former employee of Dish, Brandon Coats (“Coats”), who is a quadriplegic, and who obtained a state‑issued license to use medical marijuana to treat painful muscle spasms caused by his quadriplegia. Coats claimed that respondent Dish violated § 24-34-402.5 by discharging him for violation of their drug policy due to his state‑licensed use of medical marijuana at home during nonworking hours. He argued that the Medical Marijuana Amendment makes such use “lawful” for purposes of § 24-34-402.5, even though federal laws prohibits any marijuana use.
The decision came nine months after arguments were heard. The majority of lower courts held that Coats did not state a claim for relief because medical marijuana use, which is prohibited by federal law, is not a “lawful activity” for purposes of § 24-34-402.5. Coats v. Dish Network, LLC, 2013 COA 62, ¶ 23, 303 P.3d 147, 152 (Colo. App. 2013). A question remained about whether medical marijuana use was protected activity because the term “lawful” as used in the statute applied to state law only. If true, Coats’ use of medical marijuana would be a protected activity. The Justices refused to apply such a narrow reading to state statute or to ignore the principles of Federal preemption. In its opinion, the court stated “The term “lawful” as it is used in section 24-34-402.5 is not restricted in any way, and we decline to engraft a state law limitation onto the term. Therefore, an activity such as medical marijuana use that is unlawful under federal law is not a “lawful” activity under section 24-34-402.5.”
While this case concerned only medical uses of marijuana, the reasoning is applicable to recreational use as well. Employers should provide their employees with clear notice of their zero‑tolerance policies and enforce those policies consistently in the workplace. Read the full opinion here.
This article was authored by Kristin R.B. White and Heather E. Joyce, Jackson Kelly PLLC.
OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Kristin R.B. White
(303) 390-0006
kwhite@jacksonkelly.com
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