Colorado Hopefully Leads by Example - Decides Employee's Medical Marijuana Use Is Not Protected by State's Lawful Activities Statute

Volume 14, Issue 11
June 19, 2015

As more states legalize both medical and recreational marijuana use, it remains unclear how these laws will impact employers' drug testing and zero tolerance policies, especially in light of many states' lawful product and/or activity statutes. Coats v. Dish Network, a much-anticipated Colorado Supreme Court case released this past Monday, sheds some guidance on how employers' policies can coexist with state-by-state legalization.

Brandon Coats worked for Dish Network as a telephone customer service representative from 2007 to 2010. Suffering from spasms related to his quadriplegia, Coats registered for a state-issued medical marijuana license in 2009 in order to consume marijuana in his home outside of scheduled work hours. After a random drug test at work produced a positive result for THC, Coats told Dish Network that he was a registered medical marijuana user and intended to continue to use it outside of work. Due to violation of its drug policy, Dish Network terminated Coats. Coats then brought a wrongful termination claim against Dish Network under Colorado's lawful activity statute, which protects employees from termination based on an employee's legal activities performed off-site and off-the-clock.

After the trial court granted a motion to dismiss against Coats and the court of appeals affirmed, finding that Coats' activity was not protected for differing reasons, the Colorado Supreme Court granted review of the case to decide "whether medical marijuana use prohibited by federal law is a 'lawful activity' protected under [Colorado's lawful activity statute]." Finding the term "lawful" was not accompanied by any limiting words and, instead, was "used in its general, unrestricted sense," the Colorado Supreme Court found that the statute required the activity to be legal under both state and federal law. Accordingly, because marijuana use of any kind is still illegal under the federal Controlled Substances Act, Coats' medical marijuana use does not fall under the lawful activity statute and Dish Network could terminate Coats for his off-duty use.

While not a binding case in Nevada, Coats at least provides a snapshot of how courts will approach these laws in relation to marijuana's continued status as an illegal substance under federal law. It is also important to note that Colorado's lawful activities statute varies slightly from Nevada's lawful products statute. Coats emphasized that the statute did not contain any language that limited the word "lawful." However, NRS 613.333 protects "lawful use in this state of any product," which could be interpreted as limiting the scope to products that are legal in Nevada, even if they are illegal federally. A quick search of legislative history indicates this language was added to exclude products that are illegal in Nevada, but legal in other states, with no discussion of whether federal legality played a role. Therefore, there is room for interpretation and the Nevada Supreme Court could go in a different direction than the Colorado Supreme Court.

Additionally, keep in mind that unlike Colorado's statutes, NRS 453A.800 specifically, yet ambiguously states that an employer must "attempt to make reasonable accommodations," short of threats to persons or property, undue hardship, or inability to perform job duties. Thus, while the lawful products statute may not provide protection from termination, NRS 453A.800 could. Because the Legislature failed to provide any clarity this past session, it will be at least another two years before this ambiguity can be addressed unless a special session is called.

If you have an employee that tests positive for marijuana or asks for an accommodation, please do not hesitate to call the KZA attorney with whom you regularly work or call our office at (702) 259-8640 prior to making a final decision.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.