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At Thompson Coe's 2015 Labor & Employment Seminar, we discussed the case of Coats v. Dish Network, which was pending before the Colorado Supreme Court. In that case, former call center employee Brandon Coats brought a wrongful termination action against his employer, Dish Network, alleging that his termination, based on his state-licensed off duty use of medical marijuana, violated Colorado's Lawful Activities Statute. On June 15, 2015, the Colorado Supreme Court affirmed the lower court's decision to uphold the termination for off duty use of medical marijuana.

Coats, a quadriplegic, is licensed by the state of Colorado to use medical marijuana pursuant to Colorado's Medical Marijuana Amendment. Coats claimed he needed to use marijuana to alleviate violent spasms and seizures. He further alleged that he used marijuana within the limits of the license, never used marijuana on Dish Network's premises, and was never under the influence of marijuana at work. When Coats failed a drug test in 2010, Dish Network terminated his employment pursuant to its zero tolerance policy on drug use.

Coats sued claiming that his termination violated the Lawful Activities Statute which prohibits an employer from discharging an employee for "engaging in any lawful activity off the premises of the employer during nonworking hours." The law prevents companies from firing workers for doing things off-the-job, such as smoking cigarettes, which are legal.

The Colorado Supreme Court held that the term "lawful" under the Lawful Activities Statute only refers to activities that are lawful under both state and federal law. Thus, 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.

With the Coats decision, Colorado joins California, Oregon, Montana, and Washington, in refusing to force employers to accommodate "lawful" medical marijuana users. Unless a state's medical/recreational marijuana use statute explicitly includes an anti-discrimination clause, the current trend of state high courts is to deny job protection.

Thompson Coe's Labor & Employment attorneys can assist employers in ensuring that their drug testing and drug use policies are up to date.

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