On June 15, 2015, by vote of 6-0, the Colorado Supreme Court upheld a Court of Appeals decision which found that an employer has the right to terminate the employment of a worker who uses medical marijuana outside of work.  See Coats v. Dish Network, SC 6/15/2015. Brandon Coats, a 34-year-old Dish Network employee, failed a random drug screen because THC was found in his system.  He readily admitted to his employer that he had a medical marijuana card, but he maintained that he never used marijuana at work and never came to work “high”.  Nevertheless, Dish Network fired him because it has a “zero-tolerance” drug and alcohol policy which mandates immediate termination after proof of illegal substance use.  He sued his former employer, arguing that a state law which protects employees who engage in “lawful activities”  outside of work which do not pose a conflict of interest to an employer (for example, smoking cigarettes) applied to him.  The Court disagreed, ruling that the state statute does not limit the term “lawful” to state law only (ie., Colorado’s constitutional amendment which allows usage of medical marijuana without fear of prosecution under state anti-drug laws).  Since marijuana usage is a violation of federal law, the Court reasoned, Mr. Coat’s usage was not “lawful” within the meaning of the state anti-discrimination law at issue, and therefore his job was not protected.

This decision supports an employer’s right to maintain a “zero tolerance” policy regarding illegal substances in the workplace, even if the usage of the substance occurs outside of work hours.

Colorado now has legalized recreational marijuana.  In light of the Coats decison, it is doubtful that an employee fired for recreational marijuana usage will be any more successful convincing an employer that he is protected by Colorado’s anti-discrimination law with regard to “lawful” activities outside of work.



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