Decision may have relevance for Illinois employers as well

In a recent and somewhat surprising decision, the Colorado Supreme Court concluded that an employer legally fired an employee for violating the company’s zero-tolerance drug policy, even though the employee’s marijuana use was off-duty and legal under Colorado law.

The decision, Coats v. Dish Network, LLC, 2015 CO 44, was surprising in part because Colorado’s “lawful activities statute” makes it unlawful and discriminatory for an employer to discharge an employee for “lawful” activity outside of the workplace.

The meaning of ‘lawful’

The employee, Brandon Coats, was a licensed medical marijuana user, and it was undisputed that his marijuana use was “at home, after work, and in accordance with his license and Colorado state law.” Coats’ employer, Dish Network, maintained a zero-tolerance drug policy that called for termination of any employee who tested positive for drug use. Coats argued, however, that his use of medical marijuana was protected outside-of-work activity.

The Colorado Supreme Court rejected Coats’ argument. Instead, the court concluded that the term “lawful” meant activity that complied with state and federal law. Because marijuana possession and use remains prohibited by federal law, the court concluded that Coats’ activities were not lawful.

The court held: “Nothing in the language of the [lawful activities] statute limits the term ‘lawful’ to state law. Instead, the term is used in its general, unrestricted sense, indicating that a ‘lawful’ activity is that which complies with … state and federal law.” On this basis, the Colorado Supreme Court upheld Dish Network’s decision to terminate Coats’ employment.

Illinois interest

With the implementation of the Medical Cannabis Pilot Program — and a “lawful activities statute” similar to the Colorado law (820 ILCS 55/5) — the Coats decision should be of particular interest to Illinois employers. While it may have persuasive effect, the Coats decision is not binding on Illinois courts. Also, the Medical Cannabis Pilot Program in Illinois contains an “employer liability” section detailing measures for employer compliance with the new law. As licensed growers begin to (literally) change the marijuana landscape in Illinois, employers should begin to review drug policies and familiarize themselves with some new obligations.

If you have questions or comments about this topic, please contact the attorneys in our Employment & Labor Group.