The Colorado Supreme Court upheld Dish Network’s firing of an employee who failed the company’s standard drug test due to his off-the-job medical marijuana use, even though such off-duty use of medicinal marijuana was in compliance with Colorado’s Medical Marijuana Amendment, Colo. Const. art. XVIII, § 14. In its unanimous opinion, the Court affirmed the decision by the Colorado Court of Appeals, and held that in order to be “lawful” under Colorado’s lawful activities statute, the activity must be lawful under both state and federal law. Therefore, employees who engage in the use of medicinal marijuana are not protected from discharge under Colorado’s lawful activities statute because such use is not lawful under federal law. This decision is precedent-setting and resolves a key concern of employers in light of the legalization of marijuana for medicinal or recreational purposes in Colorado.

As a result of this decision, employers have some assurance they are free to continue with their standard drug testing procedures, and can take an adverse employment action based upon a positive drug test even if the use giving rise to the positive result occurred off-duty and is otherwise lawful under Colorado law. In order to take such action, however, employers should adopt well-articulated drug testing policies that provide advance notice to the employee of the employer’s intent to engage in drug testing. Employers also must be consistent in their application of drug-testing policies to all employees; and also must treat employees with similar drug testing results in the same manner.

Ireland Stapleton’s employment law group works closely with employers and government entities on all aspects of employment law including employment agreements; employment handbooks and policies, including drug testing policies and procedures; disciplinarily actions; and training for employers and employees on employment-related issues including discrimination, sexual harassment, FLSA, ADA and FMLA.

To schedule a time to discuss your employment policies and procedures contact our employment practice group leader, Michelle B. Ferguson, at 303-628-3658 or