For Colorado employers with a zero-tolerance drug policy, employment termination for marijuana use during off-hours has been an unsettled question ever since medical marijuana first became legal in 2000. While all marijuana use—medical and recreational—is now legal in Colorado, the drug remains classified as an illegal substance under the federal Controlled Substances Act. The quandary for employers, therefore, has been whether firing an employee for marijuana use under an anti-drug policy violates Colorado’s lawful off-duty conduct statute, which generally prohibits employers from firing an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours.” Colorado employers that have continued to enforce zero-tolerance drug policies based upon marijuana use have done so without the certainty of avoiding liability under this statute. The Colorado Supreme Court settled the issue earlier this summer in Coats v. Dish Network LLC, https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC394.pdf by ruling that off-duty use of marijuana does not come within the scope of “lawful activities” so long as it remains illegal under federal law.

This decision establishes solid precedent for all employers because both the facts and underlying empathy weighed squarely in favor of the discharged employee. Far from a partier who just liked to get high, Brandon Coats is a quadriplegic who has been confined to a wheelchair since he was a teenager. Nine years after medical marijuana became legal in Colorado, Coats obtained a state license for medical marijuana to treat painful muscle spasms caused by his paraplegia. He used the drug in this manner in his own home, while off-duty. After Coats tested positive for marijuana use under a drug screening test administered pursuant to Dish’s zero tolerance drug policy, Dish terminated Coats’ employment. Coats then filed a wrongful termination suit against Dish based upon violation of the lawful off-duty statute. In a unanimous decision, the Colorado Supreme Court affirmed the trial court’s dismissal of the case by holding that the activity at issue must be lawful under both state and federal law. While this decision was rendered in the context of a medical marijuana case, it should apply equally in the context of legalized recreational marijuana use. This is particularly true given the express language in the constitutional amendment legalizing recreational marijuana stating that the amendment is not intended to affect employers’ ability to implement and maintain policies restricting employees’ marijuana use.

Considering the fact that employers are subject to both state and federal law with respect to their employment practices, it seems right for employees to be subject to both state and federal law when it comes to lawful activities. Furthermore, the duel legal requirement is a necessity for businesses subject to U.S. Department of Transportation regulations requiring promulgation and enforcement of anti-drug policies prohibiting marijuana use. These employers can now enforce zero-tolerance drug policies for off-duty marijuana use without fear of violating Colorado’s lawful off-duty statute. Best practices dictate advance notice of enforcement to employees by including language in a written drug policy that specifically addresses prohibited use of marijuana despite the drug’s legalization in Colorado.