On Thursday, June 25, 2015, three years after Massachusetts citizens voted to allow the use of marijuana for therapeutic purposes, the state’s first medical marijuana dispensary opened in Salem, Massachusetts. The Salem dispensary is the first of many dispensaries set to open across the state – 15 of the state’s 35 dispensary licenses have already been conditionally approved.
As access to medical marijuana becomes a reality in Massachusetts, it is just a matter of time before employers in this state come face to face with the issue of employee medical marijuana use and workplace zero tolerance drug policies. While Massachusetts courts have not yet had an opportunity to interpret the state’s 2013 Medical Marijuana Act, a recent decision by the Colorado Supreme Court has employers in Colorado and other states that allow the use of medical marijuana, breathing a sigh of relief.
In Coats v. Dish Network, a quadriplegic who was a registered medical marijuana user in Colorado and used medical marijuana outside of working hours, challenged his discharge under Dish Network’s zero tolerance policy after he tested positive for marijuana during a random drug test. Coats argued that his discharge was unlawful under Colorado’s Lifestyle Law, which protects employee’s lawful activities outside of work; the Colorado Supreme Court disagreed.
In a long awaited decision issued on June 15, 2015, the Colorado Supreme Court concluded that because marijuana use remains illegal under federal law, the employee’s use under Colorado’s Lifestyle Law was not a “lawful activity” for purposes of escaping discipline under the state’s “lawful activities statute.” The Court upheld the discharge.
The Colorado decision follows the lead of Supreme Courts in California, Washington and Oregon in rejecting job protection for medical marijuana use based on those states’ laws. While not binding on Massachusetts courts, decisions such as these should have employers riding high. The “ongoing” divide between state and federal law means that although it is allowed in Massachusetts, medical marijuana remains illegal under federal law.
