A Bittersweet Victory: What is a “lawful activity?”

On May 28, 2013, Governor Hickenlooper signed the first bill in history to establish a legal, regulated cannabis market for adults. What though has gone on in the Colorado court system bodes for a more difficult assimilation of cannabis into our daily lives. On April 25, 2013, the Colorado Court of Appeals decided the case of Brandon Coats v. Dish Network, L.L.C., 2013COA62.

Brandon Coats, the plaintiff in the case and a quadriplegic, worked for Dish Network, L.L.C. and had his MMJ card. Brandon used cannabis to aid with his medical condition and used it according to the law and never used it at work nor was he ever “high” at work. Brandon tested positive for cannabis at work during a drug screen and was fired. Testing positive violated Dish Network’s drug policy and that was the only reason Brandon was fired by Dish Network. Brandon sued Dish Network.

All cannabis use is prohibited under federal law. Brandon claimed though that his medical cannabis use was a “lawful activity” under state law. If medicating with cannabis in Colorado was found to be a lawful activity, employers in Colorado would be prohibited from discharging an employee for “off-the-job” use of medical cannabis, regardless of the violation of federal law. The Court of Appeals had to determine whether medical cannabis use under state law is a “lawful activity.”  The Court of Appeals found that the use of medical cannabis in Colorado is not a “lawful activity” under Section 24-34-402.5, C.R.S.

The Court of Appeals relied on the fact that under Colorado law medical cannabis establishes an affirmative defense against criminal prosecution but does not establish a state constitutional right to use medical cannabis. The Court went on to review the employment law section which Brandon relied upon to medicate with cannabis which states, “It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours . . .”

In a tortured opinion the Court of Appeals defined and reviewed the term “lawful activity” until it reached an analysis which fit the outcome they were looking for, that employers could fire employees who under state law legally used medical marijuana during off work hours when it did not interfere with their jobs. Pointing to cannabis being illegal under federal law, the Court found that for an activity to be lawful in Colorado it must be permitted by and not contrary to both state and federal law.

Colorado’s recent legislation setting up a network to implement the legal use of cannabis is bittersweet given the fact you can still be fired from your job for having the plant in your system even if you are not using at work and are not “high” at work. To date we are not protected from an employer who wants to drug test and fire you for cannabis you used on your own time.

Ann Toney, P.C. is a Denver-based law firm that focuses on medical cannabis business law and cannabis defense; and defending people charged with driving under the influence of alcohol and drugs (DUI/DUID). Ann Toney can be contacted via phone or web at (303) 399-5556 www.anntoneylaw.com and www.medicalcannabislaw.com.