Firing Employees For Medical Cannabis: Colorado Supreme Court Says That’s Okay

A year ago we published a post about the Coats v. Dish Network case titled, “Fired For Using Marijuana? It May Be Too Damn Bad.” This week the Colorado Supreme Court got the last word on the issue, and its answer was basically, yes, it is too damn bad.

In short, the Coats case questioned whether Dish Network properly fired Coats for his off-the-clock (at home) use of medical marijuana. Coats claimed he did not come to work impaired, and that he was protected under Colorado’s Lawful Activities Statute, which prohibits employers from dismissing employees for extracurricular activities with which the employer doesn’t agree, so long as those activities are “lawful” and do not interfere with the employee’s work.

It was in this building that the Colorado Supreme Court made its decision not to protect cannabis users from their employers.
In this building, the Colorado Supreme Court ruled not to protect cannabis users from their employers.

The definition of “lawful” ended up being the pivotal issue in this case — at both the trial and appellate levels, the court held that “lawful” activity must conform to both state and federal law. Marijuana use then, even if legal under Colorado’s medical or recreational use laws, cannot quality for protection under the Lawful Activities Statute. The Colorado Supreme Court agreed, not mincing words in handing Coats his third straight loss.

So what now? Coats was quoted by the Huff Post as saying he hopes his case at least served to highlight the plight of medical cannabis patients in Colorado vis-a-vis their employers, and the uncertainty surrounding the “lawfulness” of their use. In stating its view that nothing in Colorado’s Amendment 20 indicated a legislative intent to qualify MMJ use for protection under the Lawful Activities Statute, the Colorado Supreme Court has paved the way for Colorado lawmakers to step in with a legislative fix. Presumably, if the state’s MMJ laws were tweaked to expressly protect medical cannabis use under the Lawful Activities Statue, or the Lawful Activities Statute were amended to expressly include off-the-clock medical cannabis use, other lawful MMJ patients would be spared Coats’s fate. This may only be true, however, where the employer is not exercising its right to enforce a drug-free workplace, a concession included in Colorado’s (and many other states’) medical cannabis laws. Clearly there is tension between a patient’s need and right to use medical cannabis, and an employer’s right to create rules for its workplace. A better, more comprehensive legislative fix would consider both sides and probably also distinguish between “impairment” (a legitimate concern) and mere “use” — but those lines are not easy to draw. (See The Tricky Case of Drugged (Cannabis) Driving.) We’re willing to bet that patients groups, and maybe even Coats himself (who was paralyzed as a teenager and would seem to be a sympathetic champion) will lobby hard on this issue in the coming legislative session.

As we noted last year, this case may be interesting to those in medical marijuana states around the country. Many states have some type of lawful activities law on their books, and in the developing area of medical marijuana law, courts are more likely to consider the analysis of courts from other jurisdictions.