Colorado Court of Appeals Rules Employers May Terminate Employees Who Test Positive for Marijuana

May 1, 2013

By: Michelle R. Magruder

Open Road, Colorado Automobile Dealers Association Newsletter

On April 25, 2013 the Colorado Court of Appeals ruled that an employer can terminate an employee who tests positive for marijuana, even if the employee has a Colorado issued medical marijuana card.  The plaintiff in this case, Brandon Coates, is a quadriplegic who was employed by Dish Network LLC.  Mr. Coates has a Colorado issued medical marijuana card.  Mr. Coates was fired after he tested positive for marijuana, which was a violation of Dish Network’s anti-drug policy.

After his termination, Mr. Coates filed suit claiming that his termination violated a Colorado statute known as the Lawful Activities Statute.  With some exceptions, that statute prohibits an employer from discharging an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours”.  At the trial court level, Dish Network LLC filed a motion to dismiss Mr. Coates’ case on the grounds that medical marijuana was not a “lawful activity” because such conduct remains illegal under federal law.  The trial court agreed with Dish Network’s argument and dismissed Mr. Coates’ lawsuit.  Mr. Coates appealed to the Colorado Court of Appeals.

In its opinion, the Court of Appeals noted that at the time Mr. Coates was terminated all marijuana use was prohibited under federal law and remains so today.  The court held that for an activity to be a “lawful activity” under the Lawful Activities Statute, it must be permitted by, and not contrary to, state and federal law.  The court therefore held that because Mr. Coates’ state license for medical marijuana use was at the time of termination, subject to and prohibited by federal law, his use of marijuana was not a “lawful activity” for the purposes of the Lawful Activity Statute.  Therefore, his termination was found to not be in violation of the Lawful Activities Statute and the dismissal of his case by the trial court was affirmed.

WHAT DOES THIS HOLDING MEAN FOR COLORADO EMPLOYERS?

This ruling by the Court of Appeals is good news for Colorado employers.  It allows Colorado employers to continue to enforce their anti-drug and alcohol policies without exception.  This opinion allows employers to refuse to hire someone who tests positive for marijuana, and to terminate an employee who tests positive for marijuana, regardless of whether the employee has a medical marijuana card.  We anticipate this ruling by the Court of Appeals will also apply under the Colorado law (Amendment 64) which allows for the “legal use” of recreational marijuana.

As an employer, you should have a written drug and alcohol policy that provides notice to all applicants and employees under what circumstances an applicant or an employee will be tested for drugs and alcohol.  Most employers have a drug and alcohol policy which allows for: pre-employment drug testing; testing when there is reasonable suspicion that an employee is under the influence; and testing immediately after an employee is injured on the job.

It is essential that an employer consistently enforce its drug and alcohol policy and treat everyone the same under the policy.  By doing so, an employer should avoid any claims of discrimination or unfair treatment.

Should your company need assistance with drafting, revising or enforcing a drug or alcohol policy, or if you have any employment law team at Fairfield and Woods.

This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved.

Copyright © 2013 Fairfield and Woods, P.C., ALL RIGHTS RESERVED.

Comments or inquiries may be directed to: Michelle R. Magruder