Question of Whether Employers Can Fire Employees for Lawful Marijuana Use to Go Before Colorado Supreme Court

An employee who relied on medical marijuana for debilitating pain lost his job after failing a drug test, and his case has raised the difficult question of whether moves towards marijuana decriminalization have changed the legal standards in cases of termination for marijuana use. The employee alleged that the employer violated a statute prohibiting termination for “lawful activity” outside of work, but the Colorado Court of Appeals disagreed in Coats v. DISH Network, L.L.C., 303 P.3d 147 (Col. App. 2013). The state supreme court has agreed to hear the employee’s appeal. The question involves both state and federal law, especially now that marijuana is at least partly legal in many states, but still illegal under federal law.

The plaintiff worked as a telephone operator for the satellite television service provider DISH Network. A spinal injury left him quadriplegic, and he obtained a prescription for medical marijuana to treat severe muscle spasms. Despite a good employment record, he was terminated in 2010 after failing a random drug test. He sued DISH, citing a Colorado statute that prohibits termination for “lawful activity off the premises of the employer during nonwork hours.” C.R.S. § 24-34-402.5 (PDF file).

Both the trial court and the appellate court ruled that marijuana use outside of work, even with a legal prescription, was not “lawful activity” within the meaning of the state statute. Marijuana use of any kind is still prohibited by federal law. The U.S. Supreme Court held in Gonzales v. Raich, 545 U.S. 1 (2005) that state laws allowing marijuana use do not supersede federal laws prohibiting it. For an activity to be “lawful” in a wrongful termination case, the Colorado court held, “it must be permitted by, and not contrary to, both state and federal law.” Coates, 303 P.3d at 151.

At least eighteen states, including New Jersey, and the District of Columbia have legalized it for medical use. New Jersey caselaw has held that employers may not terminate an employee for lawful activity outside of work if the termination is “contrary to a clear mandate of public policy.” Pierce v. Ortho Pharmaceutical Corp., 84 N.J. 58, 72 (1980). A claim of wrongful termination for marijuana use in New Jersey would probably not turn on whether the activity is legal, but rather whether public policy supports it.

In a case involving a claim of wrongful termination based on marital status, the court noted that adultery is no longer a criminal offense in New Jersey, and it remanded the case with instructions to consider questions of public policy. Slohoda v. United Parcel Serv., 193 N.J. Super. 586, 591 n. 1 (1984); see also 207 N.J. Super. 145 (1986). A New Jersey federal court held that an employee’s rights were not violated when he was terminated for acts that were not expressly illegal, specifically the operation of a business selling racist materials online, but were not supported by a “clear mandate of public policy.” Wiegand v. Motiva Enterprises, 295 F.Supp.2d 465 (D.N.J. 2003).

If you need to speak to an employment attorney in New Jersey or New York regarding wrongful termination or other unlawful employment practices, please contact the Resnick Law Group online, at 973-781-1204, or at (646) 867-7997.

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