Colorado has gained widespread attention and notoriety (or acclaim, depending on your point of view), for its attempts to legalize marijuana use.   While Amendment 64, Colorado’s 2012 constitutional amendment authorizing the use of recreational use of marijuana, has dominated media attention, courts are primarily focused on Amendment 20 passed in 2000, legalizing the use of medical  marijuana.  Amendment 20 prohibits state and local law enforcement officials from prosecuting authorized users of medical marijuana and their caregivers. 

The Colorado Supreme Court has decided to hear a case concerning Amendment 20’s impact on the workplace.  Under Colorado’s Lawful Off-Duty Activities Statute (“LODAS”), employers are prohibited from discharging employees for engaging in “lawful” conduct away from the workplace.  Sometimes known as the smokers’ rights statute, LODAS was passed in the early 1990s with a strong push from the tobacco lobby. 

The Colorado Supreme Court has decided to hear the issue of whether an employer can discharge an employee for authorized use of medical marijuana during non-working hours.  In the case of Coats v Dish Networks, both the trial court and the Court of Appeals ruled that an employer may discharge an employee for testing positive for medical marijuana because the use of marijuana for any purpose is illegal under the federal Controlled Substances Act.  So far, no employer has lost before a court addressing whether an employer must accommodate the use of medical marijuana by its employees.  The unanimity on the topic raises questions about why the Supreme Court granted certiorari.  It could be that the Supreme Court seeks to put its imprimatur on a burgeoning issue affecting the legal system and Colorado’s workplaces, or it could be that the Supreme Court has a different take on the subject than its lower courts.

Husch Blackwell is submitting an amicus (a friend of the court) brief on behalf of various members of Colorado’s business community encouraging affirmance of the lower courts.  Whatever the merits of medical marijuana, or recreational marijuana, employers must be able to rely on the plain terms of the LODAS:  its protections extend only to employees engaged in “lawful” activities and anything illegal under federal law cannot be lawful. Moreover, Colorado’s employers must not be put in between a rock and hard place. Employers are subject to a myriad of laws restricting the use of marijuana, such as the Drug Free Workplace Act and Department of Transportation guidelines.  Employers are accountable for their employees’ conduct in innumerable ways, from their employees’ interactions with customers and the general public, to the privacy of customers’ personal health or financial information, to the safety of its workplaces.  Customers, consumers, employers, and other employees all benefit when employers have the discretion to enforce drug-free workplace policies that promote safety and accountability.