Colorado Appeals Court says It’s Okay to Fire Cannabis Users

There is a lot of news in the media lately about the legalization of cannabis in Colorado, and much talk of a DUI limit for THC lately. Despite these hot topics, Colorado cannabis advocates were dealt a blow Thursday – and not the good kind. According to a ruling by the Colorado Court of Appeals, employers are within their rights to fire workers who smoke marijuana off the job, even if there is no evidence that they were impaired while at work. Again, even if an employee is not under the influence at work or DUI on the job, he or she can still be legally terminated.

Although marijuana use is now legal in Colorado, it is still illegal under federal law, hence the justices’ justification for the decision. The decision could have wide-ranging implications for the states thousands of medical-marijuana users, among others.

The case involving Brandon Coats — a quadriplegic medical-marijuana patient who was fired by Dish Network after testing positive for marijuana — revolves around interpretations of Colorado’s Lawful Off-Duty Activities Statute (C.R.S. 24-34-402.5), which bars employers from firing workers for engaging in legal activities while off work.

The Off-Duty Activities statute deems it “a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours,” although certain restrictions are recognized.  The law allows aggrieved employees to file a civil action for damages.

In Coats’ case, the trial court ruled that Colorado’s medical-marijuana law only creates exemptions from prosecution and not rights. His attorneys appealed, but today’s ruling by state Court of Appeals is even broader, concluding that something that is illegal federally cannot be considered lawful under the Lawful Off-Duty Activities Statute.

“While we agree that the general purpose of (the Lawful Off-Duty Activities Statute) is to keep an employer’s proverbial nose out of an employee’s off-site off-hours business, we can find no legislative intent to extend employment protection to those engaged in activities that violate federal law,” Court of Appeals Chief Judge Janice Davidson wrote in the court opinion.

Judge John Webb disagreed, saying that the Lawful Off-Duty Activities Statute, which is intended to protect employees from discriminatory firing, should only concern state law.


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