On June 15, 2015, in a 6-0 opinion, the Colorado Supreme Court provided its long-awaited ruling in Coats v. Dish Network, LLC (PDF). The Court affirmed the Colorado Court of Appeals’ decision below, and held that because marijuana is a Schedule I banned substance under federal law, it is not a “lawful” off-duty activity under Colorado law. Therefore, employers such as Dish Network, LLC may terminate employees who test positive for tetrahydrocannabinol (“THC”), a component of marijuana, in violation of a company’s drug policy.

Facts of Case

Brandon Coats, a quadriplegic who is confined to a wheelchair, worked for Dish Network, LLC from 2007 to 2010 as a telephone customer service representative. In 2009, Mr. Coats obtained a “Red Card” from the Colorado Department of Public Health & Environment to use medical marijuana to treat his painful muscle spasms. Consistent with his use license and state law, Mr. Coats uses medical marijuana at home and after work hours.

Brandon Coats, pictured above, is a quadriplegic who uses medical marijuana to control his painful muscle spasms. (Photo Credit: NY Times)

Dish Network has a zero tolerance drug policy and tests its employees both as a condition of hire and on a random basis during employment. In May 2010, Mr. Coats was selected for random drug testing. His test came back positive for THC and, even though he disclosed his “Red Card” and explained that he only used medical marijuana after hours for medical purposes, Dish Network terminated Mr. Coats’ employment for a violation of the company’s drug policy.

Mr. Coats brought a wrongful termination in violation of public policy claim against Dish Network pursuant to Colorado’s Lawful Activities Statute, C.R.S. 24-34-402.5, which prohibits employers from terminating an employee based on his or her “lawful activities” off premises and during non-working hours. Mr. Coats argued that his use of medical marijuana was “lawful” under Colorado’s Medical Marijuana Amendment (PDF), passed in 2000, and that he should not have been fired.

Dish Network filed a motion to dismiss at the trial court level, arguing that because medical marijuana use is not a “lawful” activity under federal law, it is not a “lawful” activity under Colorado’s Lawful Activities Statute. The trial court agreed with Dish Network and dismissed Mr. Coat’s lawsuit. Mr. Coats appealed.

The Colorado Court of Appeals, in a split 2-1 decision (Webb, J., dissenting), affirmed the trial court’s decision, finding that medical marijuana use is still prohibited by federal law and thus, it is not a “lawful” activity for purposes of Colorado’s Lawful Activities Statute. Mr. Coats appealed to the Colorado Supreme Court.

Making Sense of Today’s Holding

To better understand the Court’s decision (which has many people scratching their heads from a practical perspective), we must look at the precise questions certified by the Colorado Supreme Court on appeal:

1.  Does Colorado’s Lawful Activities Statute, C.R.S. 24-34-402.5, protect employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance?

HOLDING: No, the term “lawful” in Colorado’s Lawful Activities Statute, C.R.S. 24-34-402.5(1), must be broadly construed to mean lawful under both state and federal law. Since the federal Controlled Substances Act designates marijuana as a Schedule I controlled substance, meaning it has no medical accepted use, a high risk of abuse, and a lack of accepted safety for use under medical supervision, the use of marijuana, medical or otherwise, remains a federal criminal offense and is not “lawful.”

Following Judge Webb’s dissent in the Colorado Court of Appeals’ decision, Mr. Coats argued that the term “lawful” under Colorado’s Lawful Activities Statute should be construed more narrowly and should only mean lawful under Colorado state law. However, the Colorado Supreme Court disagreed, and held that it could find nothing to support that the General Assembly intended Colorado’s Lawful Activities Statute to be so narrowly interpreted.

2.  Does Colorado’s Medical Marijuana Amendment make the use of medical marijuana “lawful” and confer a right to use medical marijuana to persons lawfully registered with the state?

HOLDING: The Colorado Supreme Court declined to address this second question. I was very curious as to how this second certified question would be answered, as, in my view, it is a far broader question than the first and had implications regarding the practical conflict between state and federal laws regarding marijuana use. Unfortunately, however, the practicalities and inherent questions that arise when state voters are passing laws to legalize marijuana, yet existing federal law prohibits any and all use, live on on for another day.

In short, unless and until the federal government removes marijuana from its list of Schedule I controlled substances, an employer in Colorado may terminate employees who test positive for THC, even if the use of marijuana is off-duty, for medical purposes, and consistent with state law.

Food For Thought: Cocaine is listed as a Schedule II substance as it has been found to have an accepted medical use with a valid prescription.