Labor and Employment Law

Regardless of State Laws, the Use of Marijuana Remains Unlawful Under Federal Law

 by Kyle Abraham

On June 15, 2015, the Colorado Supreme Court issued its much-anticipated decision in Coats v. Dish Network, LLC [an enhanced version of this opinion is available to lexis.com subscribers]. This case is an important reminder that the use of marijuana remains unlawful under federal law, regardless of what a state law may say. This is a timely reminder for Oregon employers and employees, as parts of Oregon’s Measure 91 are set to take effect in two weeks, on July 1, 2015.

In the Coats case, an employee tested positive for tetrahydrocannabinol (“THC”) in violation of the employer’s policy. The employee admitted he used marijuana, at home during nonworking hours, in accordance with Colorado’s medical marijuana laws. Nevertheless, the employer terminated the employee for violating company policy. The employee challenged his termination and claimed his use of marijuana was “lawful” under Colorado law. Specifically, the employee relied on a Colorado statute which generally prohibits an employer from discharging an employee based on the employee’s engagement in lawful activities off the employer’s premises during nonworking hours. While there is no similar statue under Oregon or Washington law, the case is an important indicator of judicial attitudes about the use of marijuana in accordance with state law.

The issue before the Colorado Supreme Court was to determine whether the off-duty use of marijuana was a “lawful” activity. The court determined the employee’s use of marijuana was not a violation of state law; however, the court held that marijuana use remains unlawful under federal law. Therefore, the use of marijuana is not a lawful activity under Colorado state law.

As Oregon and Washington employers continue to deal with the challenges of recreational marijuana, this decision from Colorado serves as an important reminder. The term “legalized marijuana” is a misnomer, as the use of marijuana is still unlawful under federal law. Employers may still lawfully maintain a policy that prohibits the use of marijuana, and employers may impose discipline, including termination, for a violation of that policy. However, for some employers, a zero tolerance policy creates a number of operational challenges. To be certain, there is no one-size-fits-all policy that will work for every employer, and each employer will need to make informed decisions with respect to the risks of employee use of marijuana. As part of any employer's policy development, it remains important to be clear and transparent with employees so they understand the work rules. In light of the confusion about the legal status of marijuana use, employers will be well-served by re-publishing their policy to employees.

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Electronic Alerts are written by Barran Liebman attorneys for their clients and friends. Alerts are not intended as legal advice, but as employment law, labor law, and employee benefits announcements.

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