Case Conclusion Date: August 16, 2012
Practice Area: Employment / Labor
Outcome: Pending Court of Appeals Opinion
Description: An employee's state-approved medical use of marijuana, off his employer's premises, during nonworking hours, and in full compliance with Colo. Const. art. XVIII, sec. 14 is a lawful activity protected under Colorado's Lawful Activity Statute, C.R.S. 24-34-402.5. Colorado’s Lawful Activity Statute, § 24-34-402.5, prohibits employers from discriminating against or terminating employees for engaging in legal off-duty conduct. DISH violated this statute when it terminated Mr. Coats’ employment based solely on the presence of Tetrahydrocannabinol (“THC”) found in his body during a company drug test. The mere presence of THC found in the body is not dispositive of marijuana intoxication, and the termination of Mr. Coats by DISH was not based upon Coats being under the influence or intoxicated while at work, exhibiting poor job performance, nor endangering the health or well-being of any person. Mr. Coats never possessed or used marijuana at the work place, nor requested any work place accommodation. No exception applies to Mr. Coats as a telephone customer service representative under § 24-34-402.5, C.R.S. 2011. Mr. Coats’ state-approved use of medical marijuana, off his employer’s premises, during nonworking hours, and in full compliance with Colo. Const. art. XVIII, § 14, is a “lawful activity” protected under Colorado’s Lawful Activity Statute, § 24-34-402.5, C.R.S. 2011. The trial court erred when it dismissed Mr. Coats’ complaint against DISH pursuant to C.R.C.P. 12(b)(5), on the grounds that the use of marijuana, even when used in full compliance with Colorado’s Medical Marijuana Amendment, is not a “lawful activity” under Colorado’s Lawful Activity Statute because the Amendment is limited exclusively to providing an affirmative defense to a criminal prosecution. Record PDF p. 175. Contrary to the trial court’s conclusion, Colo. Const. art. XVIII, § 14 does more than provide for an affirmative defense to a criminal prosecution. First, the ordinary and common meaning of citizen-initiated measures, like Colo. Const. art. XVIII, § 14, require that every word be operative and given effect. Section 14(4)(a) expressly and unconditionally tells a state-approved patient in plain language that the use of medical marijuana “is lawful”. Second, based on the plain language contained in the Medical Marijuana Amendment, the General Assembly enacted and codified § 18-18-406.3, C.R.S. the following year, in which subsection (1)(f) states, “[s]ection 14 of article XVIII of the state constitution sets forth the lawful limits on the medical use of marijuana.” (Emphasis supplied). Third, this Court held that “a patient's medical use of marijuana within the limits set forth in the Amendment is deemed ‘lawful’ under subsection (4)(a) of the Amendment”. People v. Watkins, ___ P.3d ___ 2012 WL 310776 at *4 (Colo. App. 2012). Fourth, Colo. Const. art. XVIII, § 14(2)(e) creates a legal and enforceable property interest in medical marijuana. Fifth, as evidenced through the 2000 Blue Book, Colorado voters approved the Medical Marijuana Amendment to permit state-approved patients to legally acquire, possesses, use, grow, and transport marijuana and marijuana paraphernalia. Based on the above analysis of the Medical Marijuana Amendment, the protections of Colorado’s Lawful Activity Statute, § 24-34-402.5, C.R.S. 2011, which are afforded to employees for a variety of situations, also apply in the context of medical marijuana. As plainly written, § 24-34-402.5 is a remedial statute enforcing a principle of public policy, and therefore broadly construed to protect employees from unfair or discriminatory employment practices when they are in full compliance with state law. This is reinforced in legislative history (attached) as well as the Colorado Supreme Court’s interpretive decision on the statute in Watson v. Public Service Co. of Colo., 207 P.3d 860, 864 (Colo. 2008) (holding "any lawful activity" means "all lawful activity”).