Michael Raschilla: Termination for Lawful Use of Medical Marijuana

The Colorado Supreme Court’s decision in Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015) makes it abundantly clear that an individual may be terminated for violating a company’s drug policy, despite legally using medical marijuana outside of working hours. This case further emphasizes the inconsistencies between federal and state laws surrounding legalization of marijuana.


The issue in this case is whether the use of medical marijuana outside of working hours that does not hinder performance is a ‘lawful’ activity under Colorado’s Lawful Activities Statute, which protects an employee from being discretionary discharged for failing a drug test.


The use of medical marijuana is not classified as a lawful activity under Colorado’s Lawful Activities Statute, because the term ‘lawful’ includes both state law and federal law, which prohibits the use of medical marijuana.


In this case, the court examined closely the language of Colorado’s Lawful Activities Statute § 24-34-402.5(1), which protects an employee from terminated “due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.” After being terminated for failing a drug test, the plaintiff argued that his actions were lawful under Colorado law and has a valid claim of discrimination against the defendant. However, the court, in agreement with the court of appeals, rejects this argument, reasoning that the definition of lawful is not restricted to only state law. Rather, the court follows precedent and defines ‘lawful’ as unrestricted, encompassing both federal and state law.

Under federal law, marijuana is a Schedule I substance on the Control Substance Act list, which prevents medical use, unless used in federally-approved research projects. Since the use of medical marijuana is legal in the state of Colorado, but prohibited by the federal government, the court had to next determine whether state law or federal law will prevail. In reliance of a previous Supreme Court ruling, the court reasons that whenever a conflict arises between state and federal law, federal law will govern.

Therefore, the term ‘lawful,’ in the context of the statute, prohibits the use of medical marijuana, even when used outside of working hours. In affirming the decision of the court of appeals, the Colorado Supreme Court held that since the plaintiff’s use of medical marijuana was unlawful under federal law, it does not fall within the protection of lawful activities under § 24-34-402.5(1). Therefore, his claim of unlawful termination is denied.


The court was clear in holding that lawful activities, in the context of §24-34-402.5(1), do not include any activities that are prohibited by federal law. Therefore, medical marijuana users in Colorado can still be discretionarily discharged for failing a drug test, despite being in compliance with state laws.


The Colorado Supreme Court makes clear that the term, ‘lawful,’ in the state’s Lawful Activities Statue is encompassing of federal law. Therefore, individuals that are medical marijuana users are not protected by this statute, clearing up any ambiguity in interpreting that statute.

This is case is particularly noteworthy, because certain medical users, such as the plaintiff in this case, are chronically injured that rely on the health benefits provided from medicinal marijuana. This case could create serious problems for medical users that are subject to drug policies, which contradict state law. Further, this decision creates a risk of medical users being constantly at-risk of losing their job due to a random drug test, which may prevent them in receiving future employment.

Given some years have passed, this case may also prove as precedent for when other legalization gets enacted.

For example, psilocybin is now decriminalized, progressing in the direction of legalization. Using this logic, medical users of psilocybin could, in theory, be subject to this type of legal scheme when facing discretionary discharge.


Gonzales v. Raich, 545 U.S. 1, 29 (2005). The court held that the Supremacy clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail, including the area of medical marijuana.

Michael Raschilla
New York Law School

Michael Raschilla is a first-year law school student at New York Law School and is interested in the start-up and financial difficulties and nuances of dispensaries.

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