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Colo. Supreme Court: Legal to Fire Legal Marijuana Users

By Christopher Coble, Esq. on June 16, 2015 12:57 PM

Colorado joined California, Montana, and Washington in allowing employers to fire employees who use marijuana, even if it's legal in the state, even if it's medical marijuana with a prescription, and even if it's off the clock.

The state Supreme Court ruled 5-1 that Dish Network was allowed to fire Brandon Coats, a quadriplegic telephone operator who used medical marijuana while he was off-duty to calm his violent muscle spasms, after he failed a random drug test.

Colorado has a Lawful Off-Duty Activities Statute that reads: "It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours."

With the company conceding that Coats was never high at work, the question became whether "lawful" referred to state law (under which even recreational marijuana use by adults is permitted) or federal law (under which no marijuana use or possession is permitted).

Writing the majority opinion, Justice Allison H. Eid said, "employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute." So unless federal marijuana law follows states like Colorado, no employee is safe, no matter how, when, or why he or she is using marijuana.

Legal Limbo

The Colorado case is yet another reminder that given the conflict state and federal law (and even between states themselves) on marijuana, it is largely up to employers to set their own policies regarding drug use. Even though the Department of Justice has said it will not pre-empt state marijuana laws, the federal pot prohibition can still give companies cover for firing employees who use the drug.

Employees, even those with medical marijuana prescriptions, should check their company policy on drug use, and may also be better off contacting an experienced employment lawyer before toking up.

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