Defining Lawful Activity in a State Employee Lifestyle Anti-Discrimination Statute

Author: Stephanie Scott, Associate Member, University of Cincinnati Law Review

With many states legalizing marijuana for both medical and recreational use, employers have been faced with the difficult question of whether they can fire an employee for legally engaging in marijuana use. Employers generally have the right to fire employees for a good reason, a bad reason, or no reason at all.  However, many states, including Colorado, have passed lawful activity statutes conferring broad protection to its citizens from termination. Colorado also passed a state-constitutional amendment (Amendment) allowing citizens to engage in medical marijuana use, in contradiction with federal law, and its citizens have relied on that protection.[1] Since that time, Colorado has given its citizens even greater protection by amending the constitution (also in contradiction with federal law) further to allow marijuana for recreational use. Colorado should not later punish its citizens in a piece-meal fashion for not conforming to both federal and state law. Colorado’s lawful activity statute is a shield to protect law-abiding employees from wrongful termination, and Colorado courts should not shrink that shield to such a small size that employees are no longer protected from an employer’s “at-will” sword.    

Background

Generally, the default rule is that a person hired for an indefinite period of time is an “at-will employee.[2]” At-will means the employee may be terminated without cause and without notice, and the termination does not give rise to a cause of action.[3] However, both Congress and state legislatures have created exceptions to the employer’s general right to terminate an at-will employee.[4]

A phenomenon occurred in the United States during the 1990s when health care costs began rising dramatically.[5] Employers looked for ways to save money and began restricting their employee’s lifestyle’s based on health metrics (such as weight, cholesterol, smoking, and hazardous activities).[6] These restrictions, often called “lifestyle discrimination,” led more than half of the states to enact legislation.[7] Lifestyle discrimination legislation protected the rights of employees who smoke, consume legal products, or engage in legal activities during nonworking hours.[8] The majority of states with lifestyle discrimination statutes prohibit employers from terminating employees because they smoke or use lawful products on their own time. Colorado went further, and enacted a statute protecting employees from termination for any lawful activity.[9]

Colorado Revised Code § 24-34-402.5 (Lawful Activity Statute) provides in part that “it shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity off the premises of the employer during nonworking hours.”[10]

Colorado’s Lawful Activity Statute: History and Interpretation

Colorado’s Lawful Activity Statute has historically been interpreted broadly by theColorado courts.[11] The statute prohibits an employer from terminating an employee because the employee engaged in “any lawful activity off the premises of the employer during nonworking hours.[12] In Watson, the court of appeals held that the statute applied broadly to all lawful, off-duty conduct and that it could be presumed that the general assembly meant all activity without limitation.[13] The court reasoned the plain language of the statute led to the conclusion that “any” lawful activity meant “all” lawful activity.[14] Further, the court noted this was a remedial statute, and as such, it should be construed broadly and liberally to accomplish its objective.[15]

The Statute has also been interpreted broadly to require no “formal policy” restriction on the part of the employer.[16] Rather, the Statute prohibits employers from terminating employees for any of the reasons enumerated in the statute.[17] In Gwin, the court granted an employee (Gwin) damages after finding that he had been wrongfully terminated for his lawful activity at a seminar.[18] Gwin paid to attend a work-related seminar, and was promised a refund by the speaker if he was not satisfied.[19] When Gwin asked for a refund, the speaker called Gwin’s employer to discuss the matter.[20] Upon returning to work, Gwin was fired because the manager had become “incensed by [his] demand for refunds from the speaker.”[21] Gwin’s employer was found liable for violating Colorado’s lawful activity statute.[22]

Coats v. Dish Network, LLC: Marijuana Use as an Unlawful Activity

The Colorado Supreme Court recently decided whether the use of medical marijuana—which complies with Colorado’s Medical Marijuana Amendment, but in violation of federal law—was a “lawful activity” under the Lawful Activity Statute.[23] The Colorado Supreme Court affirmed the opinion of the court of appeals in holding that the word “lawful” referred only to activities that were legal under both state and federal law.[24] In Coats, a quadriplegic (Coats)—who was confined to a wheel chair since he was a teenager—registered and obtained a state-issued license to use medical marijuana.[25] Coats used the marijuana to treat painful muscle spasms caused by his quadriplegia.[26] Coats consumed the medical marijuana, at home, after work, and in accordance with his license and Colorado state law.[27] The Respondent (Dish) employed Coats as a telephone customer service representative from 2007 until 2010.[28]  In May of 2010, Dish performed a random drug test and Coats tested positive for tetrahydrocannabinol (i.e., THC); a component of medical marijuana.[29] Soon after, Dish fired Coats for violating the company’s drug policy.[30]

Coats filed a wrongful termination claim against Dish under the Lawful Activity Statute.[31] Coats argued that Dish violated the Lawful Activity Statute by terminating him based on his outside-of-work medical marijuana use, which was lawful under the Amendment.[32] The trial court dismissed the case, holding that the Amendment provided an affirmative defense to criminal prosecution and did not apply to the Lawful Activity Statute.[33]  In a split decision, the court of appeals affirmed based on the prohibition of marijuana use under the Federal Controlled Substances Act[34] (“CSA”). The majority reasoned that “lawful” meant activities that are governed by both state and federal law, and must “not be contrary” to either.[35] The Colorado Supreme Court granted review, and affirmed that the term “lawful” as used in the Lawful Activity Statute was not restricted to state law.[36] Therefore, an activity such as using medical marijuana, which is unlawful under federal law, is not a “lawful activity” under the Lawful Activity Statute.[37]

The court reasoned that the language of the statute itself lead to the conclusion that “lawful” was “generally understood” to mean “in accordance with the law or legitimate” and “not contrary to, nor forbidden by law.”[38] Further, nothing in the language of the statute suggested to the court that “lawful” was limited to state law.[39] “Instead, the term is used in its general, unrestricted sense, indicating that a ‘lawful’ activity is that which complies with applicable ‘law,’ including state and federal law.[40] There is no exception to the CSA that allows for medical marijuana use or state-legislated marijuana use.[41] Therefore, the court held that Coats was still acting illegally under the federal law of CSA and did not fall within the protection of the Lawful Activity Statute.[42]

Lawful Activity: The Better Definition in a State-Law Context

In essence, Colorado effectively granted a state-constitutional right to legally perform an activity, and then failed to protect its citizens from the heavy consequences of such actions. By hiding under a federalism facade, Colorado has disregarded its own state constitution. The Amendment gave Colorado state citizens unique permission; permission to consume marijuana for “debilitating medical conditions.”[43] Colorado passed the Amendment despite marijuana’s illegality under the CSA. However, once debilitated individuals acted in reliance on the Amendment, Colorado courts decided to use the existing CSA federal laws to civilly punish its citizens. To say the Amendment offers protection from criminal prosecution, but does not protect a citizen’s employment—their source of well-being, income, and support—is a piecemeal way of allowing debilitated citizens to be punished for something their state constitution allows.

Federal Agencies have usually deferred marijuana regulation to state legislators and enforcement agencies.[44] As the Department of Justice has stated, “The federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotic laws.  For example . . . prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property.”[45]  The federal government expects that state and local governments that have authorized marijuana-related content will implement “strong and effective regulatory enforcement systems.”[46]  Further, in December 2014, Congress passed a federal spending bill prohibiting the U.S. Justice Department from spending any money undermining state medical marijuana laws.[47] Since federal law looks to state law to govern the legality of medical marijuana use and Colorado’s constitution explicitly allows lawful medical marijuana use, Colorado should not consider federal law when determining whether medical marijuana use is lawful for purposes of its Lawful Activity Statute.

Precedent in the Colorado courts has further demonstrated that the courts interpret the Lawful Activity Statute broadly. As Watson noted, “this was a remedial statute, and as such, it should be construed broadly and liberally to accomplish its objective.” The objective of the statute was to protect employees from termination for living a legal lifestyle. It stemmed from employer’s attempting to discriminate in their employment decisions based on an individual’s lifestyle decisions; primarily tobacco use. The dangers of tobacco use were well-established. And it is reasonable that employers wanted to discourage their employees from tobacco use. However, most states did not believe that tobacco use was an acceptable reason to fire someone, even if it would benefit the employee’s health and the general health of the community. Marijuana use, in contrast, has been approved by Colorado as a viable treatment of painful “debilitating medical conditions.”[48] Creating a statute for the purpose of protecting an employee’s right to live an unhealthy and dangerous lifestyle and then refusing the same protection for an activity that serves a medicinal and pain relief function is inconsistent.

Further, Colorado courts have interpreted, and the court in Watson explicitly held, that the statute broadly includes any and all lawful activity.  One of the definitions cited to by the court in Coats was “that which is in accordance with the law.” The court in Coats reasoned they would not “narrowly” construe the statute to mean only state law, but rather they should construe the statute more broadly. As precedent holds, the statute was intended to cover any and all activities that are considered legal in the state of Colorado. This would include the use of medical marijuana as provided for by the Amendment.

Conclusion

It is unreasonable for a state to explicitly allow its citizens to engage in Medical Marijuana use, and then refuse state-law protection after the citizen abides by that law. If the claim being pursued is a state law claim, the court should interpret legality broadly to encompass all activity that is in accordance with the state law, regardless of the activity or why the person has engaged in it. To further the purpose of protecting employees that engage in activities outside of the workplace—particularly those activities that employers dislike—marijuana use, as prescribed by Colorado state law, should be considered “legal activity” for protection under the Statute.

[1] Colo. Const. art. XVIII, § 14.

[2] Crawford Rehabilitation Servs. v. Weissman, 938 P.2d 540, 546 (Colo. 1997).

[3] Id.

[4] Id.

[5] Paula Span, Smokers’ New Hazard: No Work; Health Costs Behind Job Bias Issue, WASH. POST, Nov. 12, 1991, at A1.

[6] Id.

[7] National Business Group on Health, Tobacco:  The Business of Quitting (2011), available at http://www.businessgrouphealth.org/tobacco/worksite/#12.

[8] Id.

[9] C.R.S. 24-34-402.5 (2004).

[10] C.R.S. 24-34-402.5 (2004).

[11] Watson v. Pub. Serv. Co., 207 P.3d 860, 864 (Colo. Ct. App. 2008).

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Gwin v. Chesrown Chevrolet, 931 P.2d 466 (Colo. Ct. App. 1996).

[17] Id.

[18] Id.

[19] Id. at 469.

[20] Id.

[21] Id.

[22] Id.

[23] Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015).

[24] Id. at 850.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Id. at 851.

[31] Id.

[32] Id.

[33] Id. at 851.

[34] Id.; 21 U.S.C. § 844(a) (2012).

[35] Coats, 350 P.3d at 851. The appellate court did not reach the issue of whether the constitutional amendment created a constitutional right for registered patients to use medical marijuana, or an affirmative defense to prosecution for such use. Id. Judge Webb dissented from this opinion, arguing that “lawful” must be interpreted according to state and not federal law. Id.

[36] Id.

[37] Id.

[38] Id. at 852.

[39] Id.

[40] Id.

[41] Id.

[42] Id. at 853.

[43] The Amendment defines a debilitating medical condition in part as “a chronic or debilitating disease or medical condition, or treatment for such conditions, which produces, for a specific patient, one or more of the following . . . severe pain; severe nausea; seizures, including those that are characteristic of epilepsy; or persistent muscle spasms. . .” Colo. Const. art. XVIII, § 14(a)(II).

[44] James M. Cole, Guidance Regarding Marijuana Enforcement, (2013), available at http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf.

[45] Id.

[46] Id.

[47] Michael Collins, Final Year-End Federal Spending Bill Prohibits Justice Department from Undermining State Medical Marijuana and Hemp Laws, Drug Policy Alliance, Dec. 12, 2014, http://www.drugpolicy.org/news/2014/12/final-year-end-federal-spending-bill-prohibits-justice-department-undermining-state-med.

[48] Colo. Const. art. XVIII, § 14.

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