The wait is finally over. Employers in Colorado – and in other states with similar lifestyle laws – can breathe a sigh of relief following a recent ruling by the Colorado Supreme Court. In Coats v. Dish Network, a quadriplegic employee who tested positive for marijuana during a random drug test challenged his discharge under his employer’s zero tolerance policy. The employee claimed that because he used medical marijuana, pursuant to Colorado’s Medical Marijuana Amendment, outside of work, his use was “lawful” under Colorado’s “lawful activities statute,” and thus protected from discipline.
Under Colorado’s “lifestyle law,” employers are prohibited from disciplining employees for engaging in “lawful” activity outside of work (with some limited exceptions). In upholding the discharge, the Colorado Supreme Court concluded that because marijuana use, whether for medical or recreational purposes, is still unlawful under federal law, the employee’s use pursuant to Colorado law was not a lawful activity. Thus, private employers in Colorado are free to enforce their zero tolerance policies for marijuana even if a positive test results from medical marijuana use in compliance with Colorado state law.
The Colorado Supreme Court’s ruling follows the lead of the Supreme Courts in California, Washington, and Oregon in rejecting job protection for medical marijuana use based on those states’ laws. Two federal courts also came to the same conclusion regarding Michigan’s Medical Marijuana Act.
However, employers should be cautioned not to get too high in celebrating this victory. Marijuana advocates in Colorado are likely to push for legislative action or a new ballot initiative to amend the Colorado Medical Marijuana Amendment to include protections for positive tests where the employee is not using, possessing or under the influence at work. Similar protections are already in place in Arizona, Delaware, and Minnesota. As Colorado has already legalized recreational marijuana and is seeing the tax revenue benefits from it, this victory for Colorado employers may be short lived.