Colorado Supreme Court Permits Employers To Enforce Zero-Tolerance Drug Policies Against Medical Cannabis Users

On June 15, 2015, the Colorado Supreme Court held that Colorado employers can enforce zero-tolerance drug policies against employees who are permitted under state law to use medical cannabis, even if the employees use and are under the influence of the drug only during nonworking hours. The case, Coats v. Dish Network, LLC, No. 13SC394, 2015 CO 44 (2015), examined whether Colorado's "lawful activities statute," which protects employees from termination for "lawful activity off the premises of the employer during nonworking hours," restricts an employer's ability to terminate a state medical cannabis patient for off-duty use.1 The Colorado Supreme Court held that the term "lawful" in the statute means that the off-duty activities in question must be lawful under both state and federal laws. While Colorado has legalized medical cannabis (and also recreational use of the drug), federal law still prohibits it. Accordingly, employers who dismiss employees for their medical drug use do not violate the lawful activities statute because using cannabis is still illegal under federal law. This decision provides some clarity (but leaves other questions unanswered) as companies and legal state medical cannabis patients continue to grapple with the tension between federal law and certain state laws regarding medical cannabis use.

Current State and Federal Cannabis Laws

The federal government has criminalized the use of cannabis and classified it as a Schedule I substance, which means the drug has a "high potential for abuse" and "has no currently accepted medical use in treatment in the United States," and there is "a lack of accepted safety for use of the drug or substance under medical supervision." 2

Despite this criminalization at the federal level, many states have passed laws that legalize cannabis possession and use for medical purposes. Twenty-three states, plus the District of Columbia and Guam, currently allow medical cannabis. 3 In 2000, Colorado passed Amendment 20, which grants patients who use cannabis for medical purposes an affirmative defense to state criminal laws prohibiting the use of the drug. 4 Additionally, in 2012, Colorado voters passed Amendment 64, which permits the personal and recreational use of cannabis in the state. 5

Fact Background and Analysis

Brandon Coats, the petitioner in this case, is a quadriplegic and suffers from painful muscle spasms. From 2007 to 2010, Coats worked as a telephone customer service...