Colorado Supreme Court Will Review Employee Medical Marijuana Rights

The facts of the underlying case are as follows. Brandon Coats, a quadriplegic who obtained a license to use medical marijuana under Colorado’s Amendment 20, was fired for violating his employer’s drug policy after testing positive for marijuana. He asserted that he never used marijuana on his employer’s premises, was never under the influence of marijuana at work and never used marijuana outside the limits of his medical marijuana license.  He sued his employer, Dish Network, alleging that his termination violated Colorado’s lawful off-duty activities statute, CRS § 24-34-402.5(1), which prohibits an employer from discharging an employee for engaging in “any lawful activity off the premises of the employer during nonworking hours.”

In a 2-1 decision, announced on April 25, 2013, by the Colorado Court of Appeals, held that “for an activity to be ‘lawful’ in Colorado, it must be permitted by, and not contrary to, both state and federal law.”  Because marijuana was, and remains, illegal under federal law, the court held that marijuana use is not a “lawful activity” under the Colorado lawful activities statute and therefore, the employer did not violate the statute when it terminated him for testing positive for marijuana. The decision may be found here.

However, Mr. Coats filed a petition for a writ of certiorari, asking the Colorado Supreme Court to review the split decision from the court of appeals, and on Monday, January 27, 2014, the Colorado Supreme Court agreed to review and address two issues:

  1. Whether Colorado’s Lawful Activities Statute, C.R.S. section 24-34-402.5, protects employees from discretionary discharge for lawful use of marijuana outside the job where the use does not affect job performance, and
  2. Whether the Medical Marijuana Amendment makes the use of medical marijuana “lawful” and confers a right to use medical marijuana to persons lawfully registered within the state.

Unless the case is radically expedited, it is unlikely that the Court will hear formal arguments in the case for at least a few months and it could take an additional period of weeks or months before the court renders its final decision.

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