Colorado employers should feel more secure in enforcing their drug policies against marijuana use after the Colorado Court of Appeals held recently that an employee can be fired for testing positive for medical marijuana — even if that use occurred offsite and was legal under state law, local employment attorneys say.
In Coats v. Dish Network, plaintiff Brandon Coats, a quadriplegic who claims he used marijuana on his own time for medical reasons, sued Dish Network Corp.(Nasdaq: DISH) after the Douglas County-based satellite company fired him for his use of the drug.
Coats argued that Dish had no cause to fire him because under Colorado’s Lawful Activities Statute, employees are protected from being punished by employers for their legal, off-duty activities.
The Court of Appeals decision, published April 25, held that an activity can be “lawful” under the state’s Lawful Activities Statute only if it’s legal under both state and federal law.
That ruling could have broader implications for Colorado’s Amendment 64, which changed state law to legalize small amounts of marijuana for recreational use but did not change federal laws.
“I was happy with the decision — we were all wandering in the dark a bit until we got this clarification,” said Michelle Magruder, of counsel at Denver-based law firm Fairfield and Woods PC. “The opinion is very logical. The Court of Appeals delved into the history of the Lawful Activities Statute and they didn’t find anything that would indicate ‘lawful activity’ would mean only legal in the state of Colorado. The use of marijuana is still illegal under federal law.”
Denver attorney Michael Evans, who is representing Coats in the Dish case, told the Denver Business Journal earlier that they’ll appeal the ruling to the Colorado Supreme Court.
The April 25 decision was the second time the Colorado Court of Appeals ruled in favor of employers on the medical marijuana issue, Magruder said. In an Aug. 28, 2011, decision, the appeals court held that employee Jason M. Beinor wasn’t entitled to collect unemployment benefits after being fired by Service Group Inc. for his medical marijuana use.
The attorneys interviewed for this story agreed the Coats case had to be difficult for Dish, because the employee is disabled, had a medical marijuana card and, according to his attorney, had been ranked in the top 5 percent of Dish call center representatives.
“It would be hard to find a more sympathetic plaintiff than this case,” said Holli Hartman, an attorney who practices employment law in the Denver office of BakerHostetler LLP. “But the first rule of applying your employment policies is to apply them consistently. I can’t speak for Dish Network … but I recommend employers be consistent.”
Magruder agreed. “Employers want to make sure they have a written drug and alcohol policy, disseminated at time of employment, and enforce it consistently with everyone.”
Dish wouldn’t comment on the case specifically, but emailed this statement: “As a national company, Dish is committed to its drug-free workplace policy and compliance with federal law, which does not permit the use of marijuana, even for medicinal purposes.”
The labor and employment group in the Denver office of Ballard Spahr reported that the Court of Appeals decision aligns Colorado with courts in California, Oregon, Montana and Washington on this issue. Arizona, Connecticut, Delaware, Maine and Rhode Island, however, protect employees’ medical marijuana use, Ballard Spahr said.
On the other side of the issue, some Colorado employers are concerned that having zero tolerance for marijuana will hurt their ability to hire younger workers, said Danielle Urbanpartner in the Denver office of Fisher & Phillips LLP.
“I know employers who feel that if they tested everyone, they’d have no employees in Colorado,” Urban said.
Some employers even wanted to allow off-duty use of marijuana after Amendment 64 passed, she said, because they said “they didn’t want to be hypocrites anymore.”
But they also didn’t want to be in the news, Urban said. “In the end, they decided it was too fraught with peril.”
Heather Draper covers banking, finance, law and the economy for the Denver Business Journal and writes for the “Finance Etc.” blog. Phone: 303-803-9230.
