Tuesday, June 16, 2015
Colorado employees who demand drug-free workplaces can fire employees who test positive for marijuana, even if the employees have a medical marijuana authorization and consume the weed in their off-duty hours.
That's the ruling in Coats v. Dish Network, a much-watched decision, in which the Centennial State's highest court upheld an earlier decision by the state's court of appeals. The unanimous opinion (Justice Monica Márquez did not participate) was written by Justice Allison Eid, a former law professor.
At issue in the case was a state law prohibiting employers from terminating employees for engaging in "lawful" activities in their off-hours. The plaintiff argued that using marijuana was "lawful" under Colorado law.
The decision is a pretty straightforward application of statutory construction. The court finds that the word "lawful" means "not . . . prohibited by law." Marijuana possession is explicitly prohibited by federal law -- the Controlled Substances Act -- and so would generally not be considered "lawful." The court went on to consider whether the legislature, in using the word "lawful," meant only things prohibited by Colorado law. But the language, the court found, is not restricted. Ordinarily, something is not lawful if it is prohibited by any level of government. Thus, employers presumably can fire employees for engaging in federal crimes (such as tampering with the U.S. mail or violating customs laws) that are not expressly illegal under state law.
The case is a blow to MMJ patients whose employers have drug-free workplaces. They will have to decide whether to use their medication or find alternate employment. It's a win for employers who face pressure from the feds to be drug-free and faced the possibility of being whipsawed between state and federal law.
Because the court's opinion involved interpreting a statute, the Colorado legislature could reverse the decision simply by passing a new law saying that Coloradoans cannot be fired for using medical marijuana on their own time.