Last week, the Colorado Supreme Court rejected the claim of a quadriplegic employee terminated for testing positive for marijuana. In Coats v. Dish Network, LLC, the plaintiff possessed a valid medical marijuana card issued by the state of Colorado. Following a random drug test, he returned a positive result for marijuana. The plaintiff claimed, and the employer did not dispute, that he used marijuana during non-working hours and was never intoxicated at work.

The plaintiff’s claim cited Colorado’s Lawful Off-Duty Activities statute. Like many states, this law prohibits employers from taking adverse action against persons who use legal products during non-working time. The Colorado Supreme Court unanimously held however, that this law does not extend its protections to products defined as illegal under federal law.

This decision creates a paradox in states with legal medical or recreational marijuana laws. On the one hand, the state laws seem to encourage marijuana use, and the state governments certainly benefit from enhanced tax revenues. However, state residents who take advantage of these laws have no protection from adverse employment action.

This contrast has led some state legislatures to consider measures that would prohibit employers from taking adverse action based on off-duty marijuana use in non-safety sensitive jobs. As more states begin experimenting with legal marijuana, employers’ current ability to take action based on such use may begin to shift.