June 25, 2015

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Colorado Medical Marijuana Case is Not as Far-Reaching as Expected

On June 15, 2015, the Colorado Supreme Court issued its highly anticipated decision in Coats v. Dish Network.  In a unanimous decision, the court in Coats upheld the termination of an employee who failed a random drug test after using marijuana for medicinal purposes during his off-duty hours.  The employee argued that because his use of medical marijuana was lawful under Colorado law, he was protected from discharge under Colorado’s “lawful activities” statute, which generally prohibits employers from terminating employees for engaging in lawful off-duty conduct.

Rejecting the employee’s argument, the court held that as used in Colorado’s lawful activities statute, the term “lawful” refers to those activities that are lawful under both state and federal law.  Because marijuana use for any purpose remains unlawful under federal law, the court held that employees who use marijuana, even for medicinal purposes, are not protected by the statute.

From an employment perspective, the principal concern arising from an employee’s off-duty use of marijuana stems from the impairing effects of the drug.  One frequently cited study involving aircraft pilots suggests that low to moderate marijuana use may significantly impair an individual’s ability to perform complex tasks involving machinery for as long as 24 hours after ingestion.

Many employee representatives and marijuana advocates dispute these findings, and maintain that marijuana-related impairment subsides more rapidly.  Reaching any firm conclusions concerning the typical duration of impairment is, in fact, difficult due to variations in consumption habits – there is no medically accepted “dosage” of marijuana – and because marijuana’s status as a Schedule I Controlled Substance under federal law limits the ability to conduct research into such matters.  Nevertheless, virtually all interested parties acknowledge that the impairing effects of marijuana last for some time after ingestion.  There is also some empirical evidence that chronic marijuana use can have not only temporary but lasting cognitive and physiological effects on the user.

Given these facts, it is clear that an employee’s off-duty use of marijuana could have adverse and occasionally even catastrophic workplace consequences.  An employer who allows an employee to continue working after testing positive for marijuana may be placing the employee, the employee’s coworkers, and innocent third parties at risk, and may be subjecting itself to potential civil liability to those who may be injured as a result of the employee’s inability to work safely.

These issues were addressed in several briefs submitted to the Colorado Supreme Court in the Coats case. Our firm, for example, submitted an amicus (or “friend-of-the court”) brief on behalf of the Colorado Mining Association, a 1,000-member industry organization whose members are vitally concerned with workplace safety.  In that brief, we argued, among other things, that in order to assure the safety of their workplaces (and often to comply with federal safety regulations), employers in the mining and other safety-sensitive industries should be entitled to terminate employees for off-duty marijuana use even if that use is permissible under state law.

Interestingly, the Colorado Supreme Court ultimately found it unnecessary to address most of these arguments.  Apart from noting that, as a matter of federal law, marijuana is still deemed to have “no medical accepted use, a high risk of abuse, and a lack of accepted safety for use under medical supervision,” the court did not discuss the complex policy questions presented by the case.  The court instead opted to decide the case based solely on the language of the Colorado lawful activities statute.

As a matter of statutory construction, it is difficult to quarrel with the court’s interpretation of the statute.  And by affirming the right of employers to implement and enforce “no tolerance” and other workplace drug policies that fit their particular needs, as well as their right to terminate employees who violate those policies, the Coats decision brings much-needed clarity to this aspect of Colorado law.

Before the case was decided, many observers predicted that the impact of the Coats decision would extend well beyond Colorado, providing guidance to courts addressing the workplace implications of off-duty marijuana use in other states that have legalized the medical or even recreational use of the drug.  However, the court’s opinion was crafted so narrowly that its precedential impact is likely to be more limited than anticipated.  In particular, the analysis in Coats may offer relatively little guidance to employers and employees in states like Arizona, Delaware, and Minnesota, all of whom have enacted medical marijuana laws that contain their own explicit employment protections for individuals who use marijuana in compliance with those laws.

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