State Bill Amends Legal Activity Employment Law
Measure prevents firing employees for state-legal off-duty activity, even if illegal under federal law

by Julia Cardi

In 2015, the Colorado Supreme Court ruled in favor of a company that fired an employee for his off-duty marijuana use. Now, the state legislature is revisiting that decision with a bill that would disallow such actions.

House Bill 97 sponsor Rep. Jovan Melton, said the bill clarifies current law in response to the Colorado Supreme Court’s 2015 decision in Coats v. Dish Network. The court ruled against Brandon Coats, who sued Dish Network for firing him because of his medical marijuana use away from work. The court found marijuana use wasn’t protected by Colorado’s lawful activity statute, an existing law that protects employees from getting fired for legal activities off the clock. Until now the law has not had language addressing tension between state and federal law.

“In my opinion, it kind of punted it back to the legislature and said the legislature needs to clarify what is meant by ‘illegal,’” Melton said.

Melton said the bill isn’t intended to supersede federal laws. He cited regulations on airline pilots drinking alcohol before flights as an analogous example. “Unless there’s some type of federal preemption on using alcohol or something that is legal, then this [bill] won’t supersede that,” he said.

Sarah Parady, a plaintiffs’ lawyer and partner at Lowrey Parady, said the federal and state tension between marijuana laws doesn’t seem to be relevant here because the bill doesn’t limit the federal government’s ability to enforce criminal laws regarding marijuana. There also isn’t a federal law requiring employers to fire workers for marijuana use, she said.

“If the federal government passed a law that said employers cannot employ someone who does XYZ, then that federal law would preempt this state law,” she said. “But as long as the federal law is just saying it’s a crime for you to do this, but the federal law doesn’t actually say employers must terminate people, it’s not preemption.”

Melton said the bill follows the spirit of Amendment 64, which intended to put marijuana on the same legal plane as alcohol.

However, not everyone believes the bill is a move in the right direction. Brooke Colaizzi, a member in Sherman & Howard’s labor and employment department, said the bill sets guidance for employers back where it was prior to the Supreme Court’s Dish Network decision. It’s unfair to expose employers to legal liability for disciplining employees for activity that’s still illegal federally, she said.

“I just think that’s a terrible position to put the employer in,” she said. “I realize it’s a function of the inherent conflict in the state and federal system that we have, but I don’t know that putting that tension on employers is the right way to go about this.”

House Bill 97 doesn’t limit employers’ ability to restrict workers’ off-duty legal activity in ways necessary for their work. Colorado’s existing lawful activity statute carves out restrictions related to “a bona fide occupational requirement” and those “reasonably” related to job duties. In Melton’s example of airline pilots, federal regulations limit how close to a flight pilots may drink alcohol, for example. If the new bill passes, state employers’ would likewise be able to restrict for marijuana use if it could compromise safety in employees’ job duties.

Parady said at its core, the intent of Colorado’s lawful activity law is to prevent employers from imposing their own moral views on their employees’ personal lives. She said the law has been used in contexts such as protecting religious activities and before the state passed legal protections against sexual orientation discrimination.

“I think it makes sense now that we have legalized marijuana use, the follow-up to that is [it] is now a personal and private decision in the state of Colorado,” she said. “Unless it’s actually impacting your job performance, your job shouldn’t be able to terminate you as punishment because they don’t approve of your life choices.”

Most states that have legalized recreational marijuana still allow employers to fire employees for off-duty use. But Maine protects it, and several states prohibit discrimination against employees for medical marijuana use.

“I think this was mainly an oversight when we passed Amendment 64,” Melton said. “I’ve learned in the years I’ve been down here how much we had to go back and correct and think about, being one of the first states to do this.”

To read other complete articles featured in the Jan. 20, 2020 print edition of Law Week Colorado, copies are available for purchase online.