Colorado High Court to Rule on Rocky Mountain High

The issue of medical marijuana continues to make news in Colorado and across the country. Earlier this year, the Colorado Supreme Court agreed to hear an appeal of the 2013 Colorado Court of Appeals ruling in Coats v. Dish Network, which analyzed the relationship between Colorado’s medical marijuana law and Colorado’s Lawful Activities Statute. The Lawful Activities Statute prohibits employers from taking adverse employment actions against employees who engage in lawful activities outside of work. The Court of Appeals concluded that since marijuana use remains unlawful under federal law (for medical purposes or otherwise), off-duty medical marijuana use is not protected as “lawful activity” under Colorado’s Lawful Activities Statute. Thus, the employer lawfully discharged the former employee for off-duty use of medical marijuana even though the use was pursuant to Colorado’s medical marijuana law.

In analyzing the Court of Appeal’s decision, Colorado’s Supreme Court will decide two key issues:

Whether the Lawful Activities Statute protects employees from discretionary discharge for lawful use of medical marijuana outside the job where the use does not affect job performance.
Whether the Medical Marijuana Amendment makes the use of medical marijuana “lawful” and confers a right to use medical marijuana to persons lawfully registered with the state.

While the Colorado high court’s decision will clearly have an impact on Colorado employers, employers in other states with “life-style” laws, such as Illinois, will also want to keep a close eye on this decision. Colorado has become the bellwether state dealing with issues of medical and recreational marijuana. If the residents of the state (as well as the ever-expanding marijuana businesses) can show that they can handle marijuana without the dire consequences predicted in the 1930’s film Reefer Madness, the push for medical and recreational marijuana will continue. A decision from the Colorado Supreme Court concluding that medical marijuana should get the same protections as, say smoking cigarettes or drinking alcohol, may be the next step in the process and provide more issues for employers when dealing with their employees.

As a final note, one may ask whether the late John Denver was more like Nostradamus than we ever imagined when he penned the words, “Rocky Mountain high, Colorado.”

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