The Colorado Supreme Court has ruled that an employer legally fired an employee whose off-duty use of medical marijuana under state law resulted in a positive drug test and violation of their zero-tolerance policy.
In Coats v. Dish Network, LLC, No. 13-SC-394 (June 15, 2015), the employee claimed that his use of lawfully prescribed medical marijuana was protected under Colorado’s “lawful activities statute” which prevents employers from firing workers based on their “lawful” activities outside of work. The Colorado Supreme Court thought otherwise, noting that marijuana is still listed as a Schedule I substance under the Federal Controlled Substances Act and its use, possession and manufacture is therefore still illegal except in federally approved research. As such, the lawful activities law did not protect the employee because “an activity…that is unlawful under federal law is not a “lawful” activity under [the Colorado statute].”
Minnesota’s Non-work Activities Act will likely be interpreted the same way regarding medical marijuana. Similar to Colorado, this Minnesota law bars adverse employment action based on the “use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises of the employer during nonworking hours.” Since our law also does not define the term “lawful”, it is likely that Minnesota courts would agree with Colorado to find that employees are protected only if their off-duty activities are legal under both federal and state law.
Does Minnesota’s Medical Marijuana Act Change Things?
This could be a bitter pill for Minnesota employers since our medical marijuana law contains an anti-discrimination provision that is much more expansive than its Colorado counterpart. While Colorado only prohibits criminal prosecution of medical marijuana users, Minnesota’s Medical Marijuana Act bars employers from discriminating against any person based on (1) the person’s status as a patient enrolled in the registry program or (2) a patient’s positive drug test for cannabis components or metabolites, unless the employee used, possessed, or was impaired by medical cannabis on the job. Therefore the legitimacy of a termination will not depend on the definition of what is “lawful” but rather, whether the employer can prove that the employee “used” marijuana at work or was working while “impaired” by marijuana use.
Bottom Line
Minnesota employers must exercise great caution. While the Colorado decision on its non-work activities statute is instructive on how to interpret Minnesota’s parallel law, it does not impact the primary protection afforded to medical marijuana users in our state, namely the anti-discrimination provisions of Minnesota’s medical marijuana law. These provisions are new and obviously untested in the courts so be sure to address each situation carefully and with good counsel on this emerging area of law.