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The Colorado Supreme Court recently issued a highly anticipated decision regarding employee use of medical marijuana. In the case, Coats v. Dish Network, Colorado’s highest court held that employees can be terminated for the off-duty use of medical marijuana. The Plaintiff, Mr. Coats, is a quadriplegic and has been confined to a wheelchair since he was a teenager. In 2009, he obtained a state-issued license to use medical marijuana to treat painful muscle spasms caused by his quadriplegia. Mr. Coats consumes medical marijuana at home, after work, as allowed under his license and Colorado state law.

Mr. Coats’ employer Dish Network conducted a random drug test that indicated that Mr. Coats had THC, a psychoactive component of medical marijuana, in his system. According to the National Drug Court Institute, THC metabolites can be detected in urinalysis for a week or longer (up to possibly 30 days) depending on the strength of the marijuana ingested, how it was ingested and frequency of use.

Mr. Coats informed his employer that he is a licensed user of medical marijuana during non-work hours. Dish Network terminated Mr. Coats for violating the company’s drug policy. Mr. Coats argued that his use of medical marijuana was protected by Colorado’s Lawful Activities Statute. See C.R.S.§ 24-34-402.5(1). This statute generally prohibits employers from firing an employee for doing “lawful activities” off the premises of the employer during non-working hours. For example, a militant vegan employer could not fire an employee for consuming a cheeseburger for dinner. Mr. Coats claimed that his use of medical marijuana was a “lawful activity” given Colorado’s medical marijuana laws and given that he engaged in the activity after-hours and off-premises.

In a split decision, the lower Colorado Court of Appeals held that consuming medical marijuana was not a “lawful activity” since use of marijuana for either medical or recreational reasons  is illegal under federal law. The dissent in the Court of Appeals case argued that in the state statutory language, “lawful activity” only refers to legal activities under state law.

The Supreme Court unanimously held that Mr. Coats was not engaged in a protected “lawful activity” when he consumed medical marijuana in Colorado because marijuana is illegal under federal law. 21 U.S.C. § 844(a). Federal law lists marijuana as a Schedule I controlled substance, meaning federal law designates it as having no medical accepted use, a high risk of abuse and a lack of accepted safety for use under medical supervision. 21 U.S.C. § 812(b)(1)(A)–(C). This makes the use, possession or manufacture of marijuana a federal criminal offense, except where used for federally approved research projects.

The Effect on Employers and Employees

With this Supreme Court decision, there is no question that employees can be dismissed for the after-hours, off-premises use of medical marijuana. While the facts of this case were limited to the use of medical marijuana, the holding will also apply to recreational marijuana. Additionally, the possession of less than an ounce of marijuana by an employee, while no longer criminalized by the state, can be a basis for termination if carried on premises.

The Effect on School Districts and BOCES

This ruling may impact some school district and BOCES employees who are on summer break. If a school district has a policy prohibiting the use of illegal substances even off duty, the school district or BOCES may drug test employees who are considered to be in “safety sensitive” positions when they return to work. A positive test could lead to that employee’s termination from employment. As indicated above, THC metabolites may remain detectable in urinalysis for several days or weeks after consumption of marijuana. In addition, there may be consequences  if employees are posting pictures of marijuana use on social media.

As employers, school districts and BOCES need to review their existing policies regarding drug testing and consider whether they want to change their policy for any reason. Assuming that an employer has a policy regarding testing for illicit drug use for employees in “safety sensitive” positions, any testing in response to this decision should be administered in a non-discriminatory manner.

The Effect on Hospitals and Other Medical Facilities

This ruling also supports hospital and other medical facilities policies that ban the use of medical marijuana for employees, patients or residents. It highlights that the highest court in Colorado is willing to look at federal law when interpreting issues surrounding Colorado’s marijuana laws. This decision will also add ammunition to Colorado Medical Board’s position that it can discipline physicians who are found to be using marijuana medicinally or medically. This position will likely be adopted by other health care licensing boards such as those for nursing, dentistry, chiropractic and others.

Medical facilities who accept federal health care dollars also have even more support to maintain a ban on both medical and recreational marijuana. Therefore, if a patient/resident requests the use of marijuana in violation of a facility’s policy, there is now both federal and state legal support that even medicinal marijuana is not a “lawful” activity at this time.

The Story Continues

The Colorado Supreme Court’s ruling relied solely on federal law regarding employee protections under the state Lawful Activities statute. Arguably then, a change in federal law regarding marijuana would put today’s ruling in doubt.

Currently, there are several bills in Congress to address marijuana usage from outright legalization to exempting medical marijuana from federal law. The most popular bill to exempt medical marijuana, The Compassionate Access, Research Expansion, and Respect States (CARERS) Act has bipartisan support in both the House and Senate. It has been introduced by Senators Rand Paul (R-KY), Cory Booker (D-NJ), and Kirsten Gillibrand (D-NY) in the Senate along with Rep. Steve Cohen (D-TN) and Rep. Don Young (R-AK) in the House. As more states legalize medical marijuana—10 others have done so after Colorado—there will be more pressure on Congress to consider legalizing marijuana under federal law. Stay tuned as the legal landscape for employers regarding marijuana will continue to change rapidly. Make sure you are up-to-date and in compliance with the latest laws and cases regarding this ever-changing issue.

If you have any questions regarding how this ruling may impact your business, health care organization or school district, please contact a Caplan and Earnest attorney at 303-443-8010 or by visiting www.celaw.com.