Case makes it easier to enforce workplace drug policies, says LeClairRyan’s Brian Inamine
LOS ANGELES, Calif. (6/25/15)—A Colorado Supreme Court ruling has strengthened the ability of employers to enforce workplace drug policies, advises Brian S. Inamine, a shareholder in national law firm LeClairRyan’s Los Angeles office. The decision in Coats v. Dish Network (No. 13SC394) held that employees who use marijuana off-duty, which is permitted by state law but unlawful under federal law, are still subject to their employer’s restrictions.
“The ruling provides guidance to companies with business operations in Colorado and appears to enable them to enforce their policies with respect to drug use,” says Inamine, who focuses his practice on employment counseling and employment litigation. “This ruling may put at risk the employment of people who smoke marijuana (medicinal and recreational), even though Colorado legalized both in 2000 and 2012, respectively.”
Colorado’s Medical Marijuana Amendment, passed by the voters in 2000, legalized the medical use of marijuana. It did not, however, address the question of whether employees who consume marijuana outside of the workplace—but still test positive at the workplace—were subject to discipline under their employer’s policies.
The current case was sparked when Dish Network employee Brandon Coats, a quadriplegic who used marijuana off-duty for pain relief under a doctor’s orders, was discharged by his employer after failing a random workplace drug test. Coats brought suit, claiming the termination violated the state’s “lawful activities statute,” which generally makes it an unfair and discriminatory labor practice to discharge an employee who engages in “lawful” activities outside of the workplace.
But the state’s high court, affirming a 2012 ruling by the Colorado Court of Appeals, determined that the term “lawful” refers only to activities that are lawful under both state and federal law. With marijuana use still unlawful under federal law, the justices said it was not protected under the state statute.
The decision doesn’t necessarily mean that employers in other states can similarly discipline their employees, cautions Inamine.
“Right now, the decision will only impact Colorado, although courts in other states with similar laws may find it persuasive,” he explains.
Despite the ruling, Inamine adds, employers in Colorado with workplace drug policies should still take steps to protect themselves. “Before taking any action, consult with your legal advisor to ensure that you have a workplace drug policy that complies with local, state and federal regulations, and ensure that it has been properly communicated to employees and others,” he advises. “You or your legal advisor should also continue to monitor legal and political developments in Colorado. For example, the state legislature could conceivably amend Colorado’s ‘Lawful Activities’ statute to specify that ‘lawful activities’ refer to actions that are legal under state law, without regard to federal legality.”
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