Colorado, like some other states including New York, has a law that generally prohibits an employer from discharging an employee for engaging in lawful activities outside of work.  Earlier this week, in Coats v. Dish Network, No. 13SC394, the Colorado Supreme Court affirmed a lower court ruling that the state’s “lawful activities” statute does not protect employees who engage in an activity such as medical marijuana use that is permitted by state law but prohibited under federal law.

By way of background, the Plaintiff, Brandon Coats, a quadriplegic confined to a wheelchair, obtained a state-issued license to use medical marijuana to help treat painful muscle spasms resulting from his condition.  In the course of his employment with Dish Network, the Plaintiff tested positive for marijuana during a random drug test.  As a result, Dish Network terminated the Plaintiff’s employment.

The Plaintiff, in turn, filed suit under Colorado’s “lawful activities” statute, maintaining that Dish Network wrongfully discharged him for his “lawful” use of medical marijuana outside of work.  The Court did not agree, holding that, based on a plain reading of the law, Colorado’s “lawful activities” statute only protects activities that are lawful under both state and federal law.

Despite the Court’s unanimous ruling, with the growing number of states legalizing the use of medical and recreational marijuana, we can expect more cases like this to arise across the country.  As the law continues to evolve, employers should remain vigilant and make any necessary adjustments to their anti-drug policies.

Katharine Parker and Daniel Saperstein are Co-Chairs of Proskauer’s Hiring & Background Checks Group.