More than a year ago we wrote about the intersection of state laws permitting certain medicinal and recreational use of marijuana and employers’ lawful ability to enforce policies prohibiting drug use.  (A Hazy Area of the Law:  The Impact of Medicinal and Recreational Marijuana Laws on Employers.)  At that time, we noted that a Colorado Court of Appeals’ ruling strengthened the position that an employer can lawfully terminate an employee for using medicinal marijuana in violation of its drug policies, even if the employee was not impaired at work and did not use marijuana while at the worksite or during work hours.  The Colorado Supreme Court recently confirmed that proposition, giving employers a big sigh of relief.


In that case, Brandon Coats, a telephone customer service representative with a satellite communications company, tested positive for marijuana during a random drug screening, and his employer fired him for violating the company’s drug policy.  Coats, a registered medical marijuana patient in Colorado, used the drug while at home to treat painful muscle spasms caused by his quadriplegia.

After his termination, Coats sued, alleging that his firing violated Colorado’s “lawful activities statute” by discharging him due to his state-licensed use of medical marijuana at home during nonworking hours.  Coats argued that Colorado’s Medical Marijuana Amendment made such use “lawful” under the state’s lawful activities statute.  The trial court dismissed Coats’s complaint after finding that medical marijuana use is not “lawful” under that statute.  In 2013, the Colorado Court of Appeals affirmed.

The Colorado Supreme Court recently affirmed the lower courts’ decisions.  It noted that the term “lawful” was general and not restricted in any way.  The court declined “to engraft a state law limitation onto the term” by holding the term “lawful” means activities that are “permitted by law” and those that are “not contrary to, or forbidden by law.”  Consequently, the court concluded that any activity that is unlawful under either federal law or state law cannot be “lawful” under Colorado’s lawful activities statute.  The court declined to address whether medical marijuana use is lawful under Colorado’s Medical Marijuana Amendment because the behavior was unquestionably unlawful under federal law.

As we suggested in our earlier article, this ruling further strengthens an employer’s right to discipline or terminate an employee for violating the company’s drug policy, even if that employee was not under the influence while at work and did not consume illegal drugs during work hours.  Colorado companies can continue to enforce drug policies that prohibit the use of marijuana because both the medicinal use and recreational use of the drug are prohibited under federal law.  Employers outside of Colorado should continue monitoring judicial decisions interpreting medicinal and recreational marijuana laws as they quite likely become law in other states.

Our Cannabis Practice provides advice on issues related to applicable state law. Cannabis remains an illegal controlled substance under federal law.