Arizona Attorney - June 2016

n June 15, 2015, the Colorado Supreme Court issued its highly anticipated decision in Coats v. Dish Network. 1

In a unanimous ruling that undoubtedly will help “shape the contours of how much protection state law will offer those who use medical marijuana,” 2 the Coats court upheld the termination of an employee who failed a random drug test after using marijuana for medicinal purposes during his off-duty hours. 3

The result in Coats reflects the view prevailing in most other states in which courts have addressed this issue. 4 The courts generally have upheld the right of employers to terminate an employee for using marijuana in violation of a drug-free workplace policy, 5 even if that use took place during nonworking hours and was authorized by state medical marijuana legislation. 6

Nevertheless, this is unlikely to be the result reached by a court considering the issue in Arizona, 7 because the protection afforded employees by the Arizona Medical Marijuana Act (“AMMA”) 8 is more explicit than that provided by most other states’ medical marijuana laws, 9 and “broad enough that an employer is likely required to permit the offsite and off-duty use of medical marijuana.” 10

Employment Implications of Off-Duty Marijuana Use

From an employment perspective, the principal concern arising from an employee’s off-duty use of marijuana stems from the residual or “carryover” effects of the drug. 11 One frequently cited study involving aircraft pilots suggests that even low to moderate marijuana use may significantly impair an individual’s ability to perform complex tasks involving machinery for as long as 24 hours after ingestion. 12

In State v. Lucero, 13 the Arizona Court
of Appeals described the impairing effects
of marijuana’s primary psychoactive compo-
nent, tetrahydrocannabinol or “THC,” 14 in
the following manner:
When marijuana is ingested, the concen-
tration of THC in the blood increases
rapidly, peaks, and then decreases
rapidly to an undetectable level. …
The absence of THC in the blood does
not mean that the body is unaffected,
however. Even when THC is no longer
detectable in the blood, it remains for a
time in the nervous system and contin-
ues to affect the user. It affects judg-
ment, the ability to think, and the ability
to solve problems. It can make the
ability to perform multiple tasks, such as
those performed while driving, difficult.
Adverse effects endure as long as twen-
ty-four hours after consumption. 15

Many employee representatives and marijuana legalization advocates dispute these findings16 and maintain that marijuana-related impairment actually subsides rather rapidly. 17 Reaching any firm conclusions concerning the likely duration of a particular user’s impairment is, in fact, virtually impossible due to variations in consumption habits18—there is no medically accepted “dosage” of marijuana19—and because marijuana’s status as a Schedule I Controlled Substance under federal law20 significantly limits the ability to conduct research concerning that issue. 21 Nevertheless, virtually all interested parties acknowledge that the impairing effects of marijuana last for some period of time after ingestion. 22 There is also some empirical evidence that chronic marijuana use can have more lasting cognitive and physiological effects on the user. 23

In view of the drug’s impairing effects,
an employee’s off-duty use of marijuana,
even for medicinal purposes, could have
adverse and occasionally even catastrophic
workplace consequences. 24 Although the
urinalysis test often used by employers is
an imprecise indicator of current impair-
ment, 25 an employer that allows an employ-
ee to continue working after testing positive
for marijuana could be placing the employ-
ee, the employee’s coworkers, and innocent
third parties at risk, 26 and subjecting itself
to potential civil liability to those injured as
a result of the employee’s inability to work
safely. 27

Colorado Supreme Court and Coats

The plaintiff in Coats was employed as a telephone customer service representative. 28 A quadriplegic who used marijuana to alleviate painful muscle spasms, 29 he was terminated for violating the employer’s drug policy after testing positive for THC during a random drug test. 30 He argued that because his off-duty use of medical marijuana was lawful under the Colorado Medical Marijuana Amendment, 31 he was protected from discharge under Colorado’s “lawful activities” statute. 32 That statute, the Colorado Supreme Court noted, “generally prohibits employers from discharging an employee based on his engagement in ‘lawful activities’ off the premises of the employer during nonworking hours.” 33

Rejecting the employee’s argument, 34 the court held that as used in Colorado’s lawful activities statute, the term “lawful” refers to those activities that are lawful under both state and federal law. 35 Because marijuana use for any purpose remains unlawful under federal law, 36 the court held that employees who use marijuana, even for medicinal purposes, are not protected by the statute. 37

It’s worth noting that the Coats court found it unnecessary to address the potential workplace impact of an employee’s off-duty marijuana use.38 Indeed, apart from noting that, as a matter of federal law, marijuana is still deemed to have “no medical accepted use, a high risk of abuse, and a lack of accepted safety for use under medical