Marijuana legalization is a hot topic in the United States these days and has presented some interesting new questions in the workplace. Increasingly, states are legalizing or decriminalizing private use of marijuana while the federal government continues to prohibit its use and sale under the Controlled Substances Act. At the intersection of federalism and employment law is a novel question in search of an answer: Can an employer in a state that has legalized marijuana terminate an employee in that state for off-duty use of marijuana?
Recently, the Colorado Supreme Court answered that question in the affirmative. Colorado, like some other states, makes it an unfair and discriminatory labor practice to discharge an employee based on the employee’s lawful outside-of-work activities. As an aside, North Carolina has a similar statute, but includes several carve-outs that provide a great deal of cover for employers.
The Colorado Supreme Court reasoned that the term “lawful” in Colorado’s statute means that the off-duty activity must be lawful under both Colorado and federal law. Because the statute does not explicitly restrict the term “lawful” to state law, the Court was unwilling to graft such a requirement into the statute.
The case, Coats v. Dish Network, LLC, involved a quadriplegic who was licensed to use medical marijuana to treat pain related to muscle spasms caused by his quadriplegia. He consumed marijuana only at his home, after work hours, and in compliance with the requirements of his license and state law. After a random drug test in which Coats tested positive for tetrahydrocannabinol (“THC”), a component of marijuana, Coats explained that he uses marijuana pursuant to his medical use license and would continue to use it. Dish Network fired him for violating its drug use policy.
This ruling has the potential to persuade courts in other states in which marijuana is now legal to reach a similar conclusion. There are only two ways to reverse this ruling – (1) the Colorado legislature must amend its lawful use statute to explicitly refer to state law exclusively; or (2) Congress must amend the Controlled Substances Act to, at the very least, create an exception for states that have decided to legalize marijuana.
Presently, in North Carolina, use of marijuana is still unlawful and nobody at the General Assembly seems willing to blaze a new trail on that issue. Employers in North Carolina can fire you for any use (or even suspected use) of marijuana on or off the job.
So if you work in North Carolina, it doesn’t matter whether you got high right here in the Tarheel State or in a state or country that has legalized marijuana, you can be legally discharged if your employer finds out. Random drug tests by employers are legal in North Carolina and employers are permitted to maintain robust anti-drug use policies that govern even off-duty use regardless of where the use occurs.