It May be Legal, or Maybe Not. Whatever.

Brandon Coats is paralyzed throughout 80% of his body. He is confined to a wheelchair, and suffers from involuntary muscle spasms as well as a gamut of other symptoms. To cope with his symptoms, Coats possesses a state-issued license authorizing his use of medical marijuana.

Despite his physical impairments, Coats was able to secure a customer service position answering telephones at DISH Network. There were no complaints about his performance. In May 2010, Coats’s supervisor informed him that he was required to report for drug testing. Coats voluntarily disclosed his medical marijuana use, including the fact that he possessed a valid state license and had a doctor’s recommendation. Nevertheless, his supervisor required Coats to undergo the tests, which were unsurprisingly positive for THC, a component of medical marijuana. Consequently, DISH terminated Coats in June 2010.

Coats filed suit, alleging that DISH violated Colorado state statute C.R.S. 24-34-402.5 prohibiting the discrimination or termination of employees for legal off-duty conduct. In most cases, C.R.S. 24-34-402.5 forbids employers from discharging employees on the basis of their participation in “lawful activities” off work premises or off working hours. DISH did not contend that Coats ever used medical marijuana while on the job, and so the pivotal issue was whether Coats’s medical marijuana use was a protected “lawful activity”. (As an aside, the Court did not explore, and the parties did not raise, whether Coats could have found protection under the American with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq., which requires employers to provide reasonable accommodation to the known physical or mental limitations of an otherwise qualified employee with a disability, unless it would impose an undue hardship on the employer.)

It is undisputed that all of Coats’s activities were lawful under Colorado law. However, marijuana use is still a violation of federal law – specifically the Controlled Substances Act, 21 U.S.C. § 844(a) (2012). Coats argued that the term “lawful activity” in the Colorado statute was never defined to include federal law, and therefore it should be interpreted narrowly to pertain only to state laws. DISH countered that a broad interpretation was appropriate as labor law is both federal and state in nature.

Eventually, Coats’s case wound its way to the Colorado Supreme Court, which unanimously ruled against him on June 15, 2015. The Court held that under the plain language of Colorado’s “lawful activities statute,” the term “lawful” refers only to those activities that are lawful under both state and federal law. Employees who engage in activities that are permitted by state law, but not by federal law, are not protected by the statute.

This result is troubling, although legally sound. Arguably, Colorado has been the most aggressive state in pushing the bounds of pro-marijuana reform, both medicinal and recreational. It is difficult to imagine that Colorado’s legislature intended only to make a symbolic gesture when they legalized medicinal marijuana in 2000. Moreover, the current administration has made it clear that they intend to focus its prosecutorial discretion on large scale drug trafficking, and are allowing state and local officials to regulate “small time use” such as Coats’s. Following the success of pro-marijuana ballot initiatives in Colorado and Washington, Deputy Attorney General James Cole explained, “Each case is going to rise and fall on its own unique facts, any of that is still in violation of the Controlled Substances Act of the federal law. We’re not interested in bothering people who are sick and are using it in the recommendation of a doctor. We are concerned with people who are using it as a pretext to become large-scale drug dealers.” One eminently reasonable interpretation of this statement is that the federal government has effectively decided to allow the states to individually permit the legal use of medicinal marijuana.

Yet Coats, despite 1) living under a state law that protects workers from employment discrimination or termination for off-duty “lawful activity,” 2) living under a state law where his marijuana use was fully legal and even actively licensed, and 3) living under a federal regime that has broadcast its intent to focus on large-scale drug dealers, still fell through the cracks of our legal system. This needs to change, but the solution is almost certainly legislative. Specifically in this case, the Colorado legislature will need to amend its statutes to account for those like Coats. But, more broadly, the federal government has an important role to play in resolving many of the inconsistencies between state and federal drug policy that still create confusion in many areas of law, including employment law.