New Ruling: Medical Pot use not protected under Lawful Activities Statute

New Ruling: Medical Pot use not protected under Lawful Activities Statute

Posted: June 15, 2015
by S. Kato Crews
Today the Colorado Supreme Court lent clarity to the issue of whether an employer may fire an employee for their lawful, off-duty, medical use of cannabis. Interpreting Colorado's Lawful Activities Statute, C.R.S. § 24-24-402.5, the Colorado Supreme Court ruled that employees who engage in activity such as medical cannabis use that is allowed by state law, but unlawful under federal law, are not protected by the statute. The Lawful Activities Statute provides that “[i]t shall be 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” unless certain exceptions apply. C.R.S. § 24-34-402.5(1). An employee discharged in violation of this provision may bring a civil action for damages.
The issue arose in Coats v. Dish Network, 2015 CO 44 (Colo. 2015), after Dish Network terminated the plaintiff's employment due to his state-licensed use of medical cannabis at home during nonworking hours. The plaintiff argued that Colorado's Medical Marijuana Amendment made his use of marijuana "lawful" for purposes of the Lawful Activities Statute, and that "lawful" meant "lawful under Colorado state law." But the court refused to "engraft a state law limitation onto the term." It said that the term "lawful" is used in the statute "in its general, unrestricted sense, indicating that a 'lawful' activity is that which complies with applicable 'law,' including state and federal law."
As a result, the state's high court has settled an issue that previously remained a mystery in Colorado when considering the interplay between the lawful use of cannabis under state law, the illegal use of cannabis under federal law, and an employer's ability to discharge an employee based on their lawful use of cannabis under state law. It is now clear that medical cannabis use is not considered a “lawful” activity to afford employees protection from being discharged for their off-duty use of medical cannabis, since the use of cannabis remains illegal under federal law. The decision would also apply to the recreational use of cannabis, which is also lawful under state law.

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