Colorado Supreme Court Rules Employee Can Be Fired For Smoking Pot At Home

Marijuana is legal in Colorado, but it's illegal under Federal Law. Because of that, the Colorado Supreme Court dismissed a claim by resident who was fired when he tested positive for pot.

Colorado Marijuana

The Colorado Supreme Court has ruled that an employee who was using marijuana for medical purposes as permitted by state law can nonetheless be fired for failing a drug test:

The Colorado Supreme Court ruled Monday that a business can fire an employee for using medical marijuana even if the employee is off-duty at the time, a decision that could have far-reaching ramifications in a state that has decriminalized most marijuana use.

The justices said that the employees in question can be fired because marijuana is still illegal under federal law, marking the latest example of the sharp divide between state laws and the federal law. This chasm affects nearly two dozen states that allow legal medical marijuana, as well as a growing effort across the country to legalize recreational marijuana, following in the footsteps of Colorado and other states.

While the ruling does not mention Colorado’s highly publicized and thriving recreational marijuana industry, focusing instead on medical marijuana, it could reverberate across a state that allows anyone 21 and older to legally buy and use marijuana.

Under Colorado state law, it is considered discriminatory “for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.”

In the case before the state Supreme Court, Coats v. Dish Network, the plaintiff argued that the satellite provider violated this statute by firing him for using medical marijuana. Brandon Coats is a quadriplegic who has used a wheelchair since he was a teenager, according to court filings, and he obtained a medical marijuana license in 2009.

Coats worked for Dish until 2010, when he tested positive for tetrahydrocannabinol (or THC, the active mind-altering ingredient in marijuana) during a random drug test. He was fired for violating the company’s drug policy.

A trial court dismissed Coats’s claim that he had been wrongfully terminated, and an appeals court upheld that decision. The state’s Supreme Court, in an opinion delivered by Justice Allison H. Eid, agreed with the lower courts, determining that despite the state law, Coats’s marijuana use can still be considered illegal under federal law.

Recreational marijuana became legal in Colorado last year, after voters in 2012 approved a constitutional amendment making that state and Washington the first in the country to legalize retail sales of the drug for personal use.

Meanwhile, medical marijuana use has been legal in Colorado since 2001, when a different constitutional amendment went into effect allowing “persons suffering from debilitating medical conditions” to possess and use marijuana.

That constitutional amendment does not require employers “to accommodate the medical use of marijuana in any work place.” However, it does not explicitly state what happens when medical marijuana is used by employees outside the workplace.

As is the case in most states, Colorado is generally an “at will” state when it come to employment law. At its most basic level, this means that an employer can terminate someone for any reason unless there is a contract or collective bargaining agreement that provides otherwise, or if the reason for termination is barred by law. Federal law, of course, as well as the laws in all state, bars employment discrimination based on factors such as race, religion, ethnicity, and in most cases gender and age as well. In addition to these laws, some states have adopted laws that restrict the right of an employer to terminate or discipline an employee for something that they do off premises when they are not working as long as it is permitted under applicable law. In the past, these laws have been passed to address concerns that some have had over employers attempting to regulate private activities such as smoking or drinking alcohol during private hours, but generally the law could be applied to any activity that an employee engages in during their free time as long as it is legal and as long as it is not something that could affect the performance of their job, for example a restriction on alcohol consumption placed on airline pilots, truck drivers, or train operators. (Source: C.R.S. 24-34-402.5 (2014))

In this case, Coates’s claims are defeated because of the fact that, while marijuana is fully legal in Colorado and has been legal for medical purposes there for the past fourteen years, it is still a highly illegal drug under federal law. In their opinion, the Justices make clear that it is this fact, combined with the way the statute is written, that required them to reach the decision that Coates’s claim is barred:

We still must determine, however, whether medical marijuana use that is licensed by the State of Colorado but prohibited under federal law is “lawful” for purposes of section 24-34-402.5. Coats contends that the General Assembly intended the term “lawful” here to mean “lawful under Colorado state law,” which, he asserts, recognizes medical marijuana use as “lawful.” Coats, ¶ 6, 303 P.3d at 149. We do not read the term “lawful” to be so restrictive. Nothing in the language of the statute limits the term “lawful” to state law. Instead, the term is used in its general, unrestricted sense, indicating that a “lawful” activity is that which complies with applicable “law,” including state and federal law. We therefore decline Coats’s invitation to engraft a state law limitation onto the statutory language. See State Dep’t of Revenue v. Adolph Coors Co., 724 P.2d 1341, 1345 (Colo. 1986) (declining to read a restriction into unrestricted statutory language); Turbyne v. People, 151 P.3d 563, 567 (Colo. 2007) (stating that “[w]e do not add words to the statute”).

Coats does not dispute that the federal Controlled Substances Act prohibits medical marijuana use. See 21 U.S.C. § 844(a). The CSA lists marijuana as a Schedule I   substance, meaning federal law designates it as having no medical accepted use, a high risk of abuse, and a lack of accepted safety for use under medical supervision. Id. at § 812(b)(1)(A)-(C). This makes the use, possession, or manufacture of marijuana a federal criminal offense, except where used for federally-approved research projects. Id. at § 844(a); see also Gonzales v. Raich, 545 U.S. 1, 14 (2005). There is no exception for marijuana use for medicinal purposes, or for marijuana use conducted in accordance with state law. 21 U.S.C. § 844(a); see also Gonzales, 545 U.S. at 29 (finding that “[t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail,” including in the area of marijuana regulation).2 Coats’s use of medical marijuana was unlawful under federal law and thus not protected by section 24-34-402.5.

Echoing Judge Webb’s dissent, Coats argues that because the General Assembly intended section 24-34-402.5 to broadly protect employees from discharge for outsideof-work activities, we must construe the term “lawful” to mean “lawful under Colorado law.” Coats, ¶¶ 46-47, 303 P.3d at 156 (Webb, J., dissenting). In this case, however, we find nothing to indicate that the General Assembly intended to extend section 24-34-402.5’s protection for “lawful” activities to activities that are unlawful under federal law. In sum, because Coats’s marijuana use was unlawful under federal law, it does not fall within section 24-34-402.5’s protection for “lawful” activities.

It seems fairly apparent to me that the Court reached the right decision here as far as the law is concerned. The statute makes no distinction between something that is illegal under state law and something that is illegal under Federal law, so it would be improper for the Court to read that distinction into the law at this time. If the legislature wishes to make that clarification, they are certainly free to do so on their own. In fact, I would say this would probably be a good idea, especially in the case of someone who is using marijuana for medical purposes. Of course, some employers will likely object to such a distinction being made, but it’s also possible that many will not given the fact that a decision like this does seem to be manifestly unfair on the surface even if it is correct under the law. Given the current political climate surrounding marijuana, though, I would not be surprised if this decision spurred the legislature to act to protect Colorado workers who are engaging in an activity that is permitted under state law.

The main point that this decision emphasizes, of course, is the same one that we have seen playing out in Colorado and other states that have legalized or decriminalized marijuana or legalized it for medical purposes. While the states continue to liberalize their marijuana, and polling shows that a majority of Americans support legalization, and overwhelmingly support legalization for medical purposes, Federal law continues to treat marijuana as if it were identical to cocaine, heroin, and other “hard drugs,” and some candidates for President have vowed to crack down even in states where the public has chosen to legalize pot. As long as Federal law continues with this absurd treatment of marijuana, we will continue to see absurd results such as this, and innocent people will continue to live in fear of being arrested for doing something that shouldn’t be illegal to begin with. If nothing else, perhaps cases like this will cause the issue to become one that the general public pays more attention to, and lead them to put some pressure on politicians to change the law.

Here’s the opinion:

Coats v. Dish Network by Doug Mataconis

FILED UNDER: Economics and Business, Law and the Courts, US Politics, , , , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. DrDaveT says:

    while marijuana is fully legal in Colorado and has been legal for medical purposes there for the past fourteen years, it is still a highly illegal drug under state law.

    I think you mean “under federal law”. Kind of an important typo.

  2. Yea. Fixed

  3. James Pearce says:

    “Given the current political climate surrounding marijuana, though, I would not be surprised if this decision spurred the legislature to act to protect Colorado workers who are engaging in an activity that is permitted under state law.”

    Jared Polis will fight for this.

    Rand Paul won’t.

  4. bill says:

    alcohol is legal- but most companies won’t allow you to work under it’s influence. same deal- just that weed stays in your system longer so it’ll be detected weeks after. it’s a liability to most insurers so i don’t see this going away anytime soon.
    maybe they can find a way to see if you’re still stoned other than red eyes and munchies?

  5. Kari Q says:

    @bill:

    alcohol is legal- but most companies won’t allow you to work under it’s influence.

    On the other hand, if you have a beer or two at lunch and your job doesn’t involve driving, it’s highly unlikely that anything is going to happen, even though you’re technically ‘under the influence’ and those few beers are going to have a much bigger impact on your performance than the joint you smoked over the weekend.

  6. PD Shaw says:

    @bill: Employers that test for alcohol use will generally fire someone if their BAC is 0.040 or higher, which is legal to drive in most states as long as you’re not a commercial driver.

  7. James Pearce says:

    @bill:

    alcohol is legal- but most companies won’t allow you to work under it’s influence.

    In a legal-weed environment, most companies will prefer high-performing potheads over low-performing teetotalers.

    In other words, this ruling really means, you can be fired for off-duty pot use…..if your employer is a jerk.

    Also, this:

    maybe they can find a way to see if you’re still stoned other than red eyes and munchies?

    I love it when conservatives crack pothead jokes. We just spent the last 50 years locking people up because weed is soooooo “dangerous.”

    And now it’s just an object of fun.

  8. Tyrell says:

    So many times the Federal government has taken away rights and authority from the states. Unconstitutional.

  9. Neil Hudelson says:

    @Tyrell:

    Please point to the part of the Constitution that is being violated here.