Colorado Supreme Court Finds Employers May Lawfully Terminate Employees for Use of Medical Marijuana
On June 15, 2015, the Colorado Supreme Court issued Coats v. Dish Network finding that Colorado employers may lawfully terminate employees who use medical marijuana during non-working hours despite Colorado law prohibiting employers from discharging employees based on the employee’s “lawful” outside-of-work activities.
Similar to Illinois, Colorado statute makes it an unfair and discriminatory labor practice to discharge an employee based on the employee’s “lawful” outside-of-work activities. In Coats, the Colorado Supreme Court was tasked with determining whether an employee’s use of medical marijuana in compliance with Colorado’s medical marijuana laws, but in violation of federal law, was “lawful activity” under Colorado’s “lawful activities statute.”
Specifically, a former employee sued his former employer, Dish Network, LLC (“Dish”) arguing that Dish violated Colorado’s “lawful activities statute” by discharging him due to his state-licensed use of medical marijuana at home during non-working hours. The appellate court held that the former employee did not state a claim because medical marijuana use, which is prohibited by federal law, is not “lawful activity” for purposes of Colorado’s “lawful activities statute.” The Colorado Supreme Court affirmed the lower court’s decision on appeal.
Illinois law is similar to Colorado’s “unlawful activities” law in that the Illinois Right to Privacy in the Workplace Act provides that it is unlawful for an employer to refuse to hire or to discharge any individual or otherwise disadvantage any individual with respect to compensation, terms, conditions, or privileges of employment because the individual “uses lawful products off the premises of the employer during non-working hours.”
Although the Colorado decision is not controlling in Illinois, the decision may provide guidance if and when Illinois courts must decide whether an employer has violated the Illinois Right to Privacy in the Workplace Act when the employer discharges an employee for using medical marijuana in compliance with the Illinois’ medical marijuana laws.
Nevertheless, employers should be cautious in making decisions about employees who use medical marijuana, which implicate many laws including the Americans with Disabilities Act (“ADA”), federal and Illinois Drug Free Workplace Act, Family Medical Leave Act (“FMLA”), Occupational Safety and Health Administration (“OSHA”), and motor vehicle laws and regulations, among others. Employers are encouraged to contact legal counsel prior to taking adverse action against qualifying patients who have a legal medical prescription for marijuana.
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