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Colorado court rules smoking pot off the job can still get you fired

Attorney Michael D. Evans and client Brandon Coats, who was fired from his job at Dish Network in 2010 for smoking medical marijuana off the clock.
Attorney Michael D. Evans and client Brandon Coats, who was fired from his job at Dish Network in 2010 for smoking medical marijuana off the clock.The Evans Firm

Coloradans may be able to legally smoke pot now — but lighting up a joint, even off the clock, can still get you fired.

Although Centennial State voters approved a measure last fall to legalize marijuana use, the Colorado Court of Appeals ruled Thursday that employees can still be fired for testing positive for the drug -- even if they never show up to work impaired.

A divided panel of judges decided that because marijuana use is illegal under federal law, employees are not protected from being terminated for using it.

The case centered on Brandon Coats, a quadriplegic medical-marijuana patient who was fired in 2010 from his job as a telephone operator for Dish Network after testing positive for the drug. Lawyers for Coats argued he was protected under a Colorado law that states it is illegal for workers to be terminated for participating in lawful activities off the clock.

But a trial court dismissed the claim in 2011, siding with Dish Network that medical marijuana use isn't a "lawful activity" covered by the termination law.

Now, even though the law has changed, the outcome for Coats has not. In its ruling, the Colorado Court of Appeals sought to define the word "lawful," ultimately concluding that for something to be lawful it "must be permitted by, and not contrary to, both state and federal law."

Coats' attorney Michael Evans said the ruling is a major blow to Coloradans who use marijuana for medicinal purposes. 

"This case not only impacts Mr. Coats, but also some 127,816 medical-marijuana patient-employees in Colorado who could be summarily terminated even if they are in legal compliance with Colorado state law," he said in a statement.

Evans plans to appeal the ruling and said he believes the three-judge panel ultimately reached its decision out of a reluctance to issue a groundbreaking reversal that could have a far-reaching impact as Colorado establishes how to govern its new drug laws.

"What they did was the conservative thing, the safe thing to do," Evans said of the ruling.

The court acknowledged that Dish Network never accused Coats of being impaired while on the job. Lawyers for the former employee said he received satisfactory performance reviews all three years he worked at the company. 

But Dish Network ultimately has the right to fire marijuana smokers regardless of whether they were good employees, the court ruled. "While we agree that the general purpose of (the Lawful Off-Duty Activities Statute) is to keep an employer's proverbial nose out of an employee's off-site off-hours business ... we can find no legislative intent to extend employment protection to those engaged in activities that violate federal law," Court of Appeals Chief Judge Janice Davidson wrote in the opinion.

Judge John Webb dissented in the 2-1 vote, disagreeing with the majority's conclusion on the definition of lawful. 

If the federal government had issue with various states' versions of lawful off-duty activities statutes, it could have passed a federal law by now, Webb argued.

"[Congress] could have resolved that problem with legislation empowering employers to discharge employees who have engaged in conduct that violated any federal law. To date, Congress has not done so. Recognition that protecting employees from discharge based on their off-duty conduct is primarily a matter of state concern favors measuring 'lawful' based on state law," he wrote in his dissent.