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The AR Group

Yes, You May be Able to Fire an Employee for Smoking Pot in Colorado

by Christine Wilkinson, Esq.

Question:

May an employer lawfully terminate a disabled, quadriplegic employee who has a valid medical marijuana prescription, legal under Colorado law, that tests positive for marijuana, during a random drug test?

Answer:? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ?

According to the Colorado Court of Appeals, in an opinion issued April 25, 2013: yes.?

 

Background:

Brandon Coats, was a Dish Network customer service representative who used medical marijuana to control muscle spasms caused by an injury that rendered 80% of his body paralyzed when he was a teenager. ?Mr. Coats only used marijuana during his off-duty time, was never observed or known to be impaired at work, and by all accounts, performed his job well. ?However, when Mr. Coats failed a random drug test, as part of Dish Network?s normal operating procedure, he was fired for violation of the Company?s drug use policy.

Mr. Coats argued that termination of his employment violated Colorado state law, which permits marijuana to be prescribed for medical purposes, and provides — through the Lawful Off-Duty Activities statute — that an employer cannot discipline an employee for engaging in off-duty conduct that is legal. Dish Network countered that marijuana use is illegal under federal ?law, regardless of whether state law provides exceptions to prosecution. The Colorado Court of Appeals not only agreed with Dish Network, but went a step further holding that conduct that is illegal under federal law can never be considered ?lawful? for purposes of interpreting Colorado?s Lawful Off-Duty Activities statute. Coats v. Dish Network LLC, 12CA0595 and 12CA1704 (Colo. App. April 25, 2013).? Importantly, the Court explained, ?While we agree that the general purpose of (the Lawful Off-Duty Activities statute) is to keep an employer’s proverbial nose out of an employee’s off-site off-hours business, we can find no legislative intent to extend employment protection to those engaged in activities that violate federal law.”

The case represents a positive development for employers as the modern landscape of marijuana legalization continues to evolve — whether in medicinal or recreational form.? This case also sets a precedent because it applies to a novel situation: the off-duty conduct of an employee who was neither alleged to be, nor perceived to be ostensibly impaired while on the job. Colorado currently has 127,000 medical marijuana patients and that number is literally growing by the day since Colorado legalized recreational marijuana use by referendum in November 2012.

While the result of this case is encouraging for employers, it does not necessarily provide free rein to terminate employees suspected of marijuana use.? If an employer suspects or discovers that an employee is using marijuana, certain steps should be taken to ensure that proper protocols and/or processes are in place, and that both state and federal law guidelines are adhered to. Consulting with legal counsel prior to taking disciplinary action is recommended to help protect against unnecessary risk and downstream complications resulting from employee challenges that are likely to follow.

 

Smart Tip:?

Employers should confirm that:

1. ?An effective and appropriate drug-free workplace policy is in effect that provides consequences for violating it, and

2. ?The policy is applied consistently and equally to all employees

Remember that government contractors are subject to special contractual obligations that must be accommodated and reflected in the employee handbook or other policies and managed to accordingly.