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Up in Smoke? Colorado’s Highest Court Upholds Termination of Employee for Off-Duty Medical Marijuana Use

June 16, 2015

In a closely watched case involving the use of medical marijuana by an employee, the Colorado Supreme Court unanimously affirmed the lower courts’ rulings that businesses may fire employees for being under the influence of medical marijuana, even if that use takes place off the job.

Brandon Coates, a quadriplegic, had a medical marijuana card provided by a physician and smoked marijuana off-duty to control muscle spasms. Mr. Coates was employed by Dish Network and subsequently terminated in 2010 after failing a random drug test under the company’s zero tolerance drug policy.

The issue before the court was whether the use of medical marijuana pursuant to Colorado’s Medical Marijuana Amendment was “lawful” under the Lawful Off-Duty Activities Statute. Mr. Coates unsuccessfully argued that his use of marijuana was legal under state law, and therefore, his termination was in violation of the Lawful Off-Duty Activities Statute. According to the court’s opinion, off-duty activities must be lawful under both state and federal law. Consequently, since the use of medical marijuana is not lawful under federal law, the off-duty activity of smoking medical marijuana is not protected and the termination was not unlawful.

This decision leaves the door open for the legislature in Colorado to make changes to the Lawful Off-Duty Activities Statute or create other laws to provide further protection to employees who smoke medical marijuana off-duty.

Employers should review their drug and alcohol policies and may want to consult with legal counsel about state laws regarding the use of medical marijuana and off-duty conduct to determine whether any policy changes are necessary or advisable in light of this decision.

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