The Colorado Appeals Court Harshed My Mellow.

In California, we know that there is no right to work if you test positive for marijuana, not even medical marijuana.  See Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (2008).

But Colorado not only has "medical" marijuana, but also a new law making all marijuana use legal, medical or not.  Well, the Colorado Court of Appeals did not get the memo prohibiting employers from discharging those who test positive for marijuana.

Applying the state's previous "medical marijuana" law, the Court decided that even medicinal use is not a "lawful activity" under the Colorado lawful activity statute.  (If marijuana use was protected as a lawful activity, employers could not discharge an employee for engaging in it).

Why?  Here's what the court said:

because activities conducted in Colorado, including medical marijuana use, are subject to both state and federal law, . . . for an activity to be “lawful” in Colorado, it must be permitted by, and not contrary to, both state and federal law. Conversely, an activity that violates federal law but complies with state law cannot be “lawful” under the ordinary meaning of that term. Therefore, applying the plain and ordinary meaning, the term “lawful activity” in section 24-34-402.5, means that the activity – here, plaintiff’s medical marijuana use – must comply with both state and federal law.

One of the three judges dissented, arguing that a "lawful activity" should be defined only under state law.

It may be that the Colorado Supreme Court takes this up, or that the Colorado legislature or voters have something to say about this issue. For now, though, Colorado employees cannot "wake and bake" before work under the protection of the lawful activities law.

The case is Coats v. Dish Network and the opinion is here.