CALIFORNIA COMPENSATION CASES
Vol. 88, No. 5 May 2023
A Report of En Banc and Significant Panel Decisions of the WCAB and Selected Court Opinions of Related Interest, With a Digest of WCAB Decisions...
By Hon. Susan V. Hamilton, Former Assistant Secretary and Deputy Commissioner, California Workers’ Compensation Appeals Board
In 2022 there were 7,490 wildfires in California. They burned 362,455 acres...
By Christopher Mahon
Should temporary workers be treated separately under workers’ compensation law due to additional employment and income risks they may incur after workplace injuries? A new study...
Here's a noteworthy panel decision where a family member conveyed essential information to the AME on behalf of the injured employee. The Lexis headnote is below.
CA - NOTEWORTHY PANEL DECISIONS...
Oakland, CA – Part II of a California Workers’ Compensation Institute (CWCI) research series on low- volume/high-cost drugs used to treat California injured workers identifies three Dermatological drugs...
June 15, 2015
No. 13SC394, Coats v. Dish Network
In a highly anticipated decision, the Supreme Court of Colorado unanimously held this week that an employer may justifiably terminate an employee for his off-duty conduct, despite the employee’s adherence to state law governing medical marijuana.
The core issue before the Court was whether the use of medical marijuana, in compliance with Colorado’s Medical Marijuana Amendment, but in violation of federal law, is considered a “lawful activity” under Colorado’s Lawful Activities Statute.
Affirming the Court of Appeals’ decision by a vote of 6-0, the Court ruled against Brandon Coats, a paraplegic man and former Dish Network employee. The Court arrived at its conclusion by reasoning that the plain language of the term “lawful” within Colorado’s Lawful Activities Statute refers only to those activities that are lawful under both state and federal law.
Brandon Coats had worked as a telephone customer service representative for Dish from 2007 until 2010, when a routine company drug test revealed the presence of THC (the major psychoactive ingredient in marijuana). Because Dish had a “zero-tolerance” drug policy, it subsequently terminated Coats.
Coats filed suit for wrongful termination, arguing he should have been protected by Colorado’s “Lawful Activities Statute,” which makes discharging an employee based on “lawful” off-duty conduct an unfair and discriminatory labor practice. The THC detected in the drug test was the result of Coats’ consumption of medical marijuana, which he had previously obtained a license to use in order to reduce the pain of his frequent muscle spasms—a symptom not uncommon among paraplegic individuals. In other words, Coats was terminated because of his “lawful” use of medical marijuana under Colorado’s Medical Marijuana Amendment.
What Does “Lawful” Mean?
The Court of Appeals reasoned that Dish’s actions did not violate the Lawful Activities Statute because medical marijuana remains prohibited under federal law. The Court used the plain meaning of the word “lawful”—“that which is permitted by law”—to reason that for purposes of the statue, “lawful” is used in regard to activities that are governed by both state and federal law. Dissenting Judge Webb disagreed, contending that the state’s Lawful Activities Statute should protect individuals like Coats, since the statute refers only to Colorado law, which holds medical marijuana as “at least lawful.”
The Supreme Court adopted the Appeals Courts’ majority opinion, finding the term “lawful” to mean “not contrary to, or forbidden by law,” without restrictions. The federal Controlled Substances Act (the “CSA”) prohibits the use, possession, and manufacture of marijuana, makes the use of medical marijuana unlawful under federal law. Thus, Coats’ behavior was not a “lawful activity” under Colorado’s Lawful Activities Statute, and the court held Coats’ termination to be valid.
DOJ Not Heartless
In a footnote to its opinion, the Court recalled that the Department of Justice has announced that it will not prosecute cancer patients or individuals with similarly debilitating illnesses who use medical marijuana in accordance with Colorado law. It made clear, however, that marijuana is still listed as a schedule I substance under the CSA, and thus using marijuana for medicinal purposes is prohibited under federal law.
What Impact Will the Court’s Ruling Have?
The Court’s ruling portends that states with statutes protecting “lawful” off-duty conduct will still be bound by federal law in its characterization of what constitutes “lawful” conduct.
While the court’s ruling is binding in Colorado alone, the decision may serve as persuasive authority in similar cases in other jurisdictions. Colorado is one of a few states that already have policies protecting lawful off-duty conduct.
To licensed users of medical marijuana, the Court’s holding in Coats may come as a blow. Although medical marijuana is legalized in the State of Colorado, cases such as this illustrate the control that employers retain over employees’ on- and off-duty conduct. Despite the Colorado Lawful Activities Statutes promise of protection for lawful off-duty conduct, the Court’s holding allows for the termination of individuals who have never been impaired at work nor demonstrated any sort of unsatisfactory workplace performance.
In responding to the court’s ruling, Coats said, “Although I’m very disappointed today, I hope that my case has brought the issue of use of medical marijuana and employment to light. . . . Hopefully views on medical marijuana—like the ones in my specific case—will change soon.”
That change, however, is likely not to come as soon as Coats and others similarly situated would prefer. To date, courts that have adjudicated this and similar issues have uniformly found in favor of employers’ abilities to discipline employees for lawful use of medical marijuana, lawful at least under state law, given the illegality of same under federal law. Had this case been decided in Coats’ favor, perhaps this would have been a harbinger of change, but, for now at least, employers are likely breathing a collective sigh of relief and are likely emboldened to continue to follow their existing drug and alcohol policies regardless of state law changes involving recreational and medical marijuana.