Can you fire medical marijuana users? A definitive answer, finally

It’s about time. Employers have finally been given pretty definitive guidance on how they can enforce their workplace drug policies in the wake of marijuana-friendly changes to state laws. 

The Colorado Supreme Court just ruled that federal law supersedes state law — and employers have the right to enforce their policies according to federal law.

Translation: Employers can terminate those who test positive for marijuana on-the-job, even if they smoked pot off-the-job in accordance with their state law.

This is precedent that would likely hold up in states besides Colorado as well.

Currently, more than 20 states allow medical marijuana use, and four states have legalized the drug’s recreational use for adults. The recent changes in states’ laws have left employers in the lurch when it comes to how to create and enforce workplace drug policies effectively.

But the Supreme Court of Colorado is saying employers have the right to create their own drug policies as they see fit.

The closely watched case of Mr. Coats

The question of whether or not employees who use pot legally can be fired for failing an employer’s drug test was brought before the court by Brandon Coats, a former phone operator for Dish Network.

Coats is a Denver native and registered medical marijuana user. He’s also a quadriplegic who uses pot in accordance with Colorado law to treat painful muscle spasms he suffers that stem from a car accident that left him paralyzed and wheelchair-bound.

In 2010, he tested positive for marijuana and was fired by Dish, which claimed that his use of pot, even if consumed legally off the job, violated the company’s zero-tolerance anti-drug policy.

Coats then sued Dish for wrongful termination, claiming Colorado law protects employees from being punished for engaging in lawful activities outside the workplace.

Colorado law says:

An employee cannot be terminated for reasons violating public policy. Examples include discharging an employee for: filing a worker’s compensation claim; bringing or threatening a lawsuit; serving on a jury; engaging in lawful off-duty activities; refusing to commit perjury; whistleblower situations, etc.

Two lower courts had already ruled against Coats, and the state’s highest court upheld those two previous rulings by a vote of 6-0.

Court: A violation of federal law isn’t protected

It ruled that federal law, which still classifies marijuana as an illegal narcotic, trumps Colorado’s statutes. Therefore, pot users aren’t protected by state law.

The exact ruling:

“The supreme court holds that under the plain language of section 24-34-402.5, 14 C.R.S. (2014), Colorado’s “lawful activities statute,” the term “lawful” refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”

Pretty clear — employees who violate your drug policies by smoking marijuana can be punished.

Granted, this ruling was made by the Colorado Supreme Court and not the federal Supreme Court, so there’s a chance that other states’ courts may not abide by this decision. But you can bet they’ll look at this as a pretty strong precedent — along with similar rulings handed down in California, Oregon, Montana and Washington.

Bottom line: Employers can feel more comfortable about enforcing their anti-drug policies than they have for the past few years.

It’s also worth noting that the Department of Justice has said it will not prosecute those with debilitating conditions who use medical marijuana in accordance with state laws.

A few outliers

While it stands to reason that other states would use the same reasoning as the Colorado Supreme Court, giving employers freedom to punish pot smokers who fail workplace drug tests, some states have broader employee protections — and how those protections jibe with federal law have yet to be fully flushed out in court.

Laws in Arizona, Delaware and Minnesota, for example, specifically state that employers generally cannot penalize patients for testing positive for marijuana. The saving grace for employers, however, is that each of those states allows employers to punish smokers who are impaired on the job.

(Note: This is an issue we dealt with in our breakdown of what makes an effective modern drug policy.)

Cite: Coats v. Dish Network