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Employee Off-Duty Conduct: Federal law trumps

Generally speaking, employers are not permitted to terminate employees for off-duty “lawful activity” like consuming alcohol, carrying a firearm or gambling, even when that conduct may be prohibited in the workplace itself.

Over a dozen states, including Indiana and Kentucky, have specific statutes that protect off-duty tobacco use or the use of lawful products. Other states, like New York, have more expansive protections that cover the “legal use of consumable products” and “legal recreational activities.”  A broad Colorado statute, §24-34-402.5, makes it unlawful discrimination for an employer to terminate an employee for engaging in any “lawful activity” while off-duty unless there is a bona fide occupational requirement, the restriction is reasonably and rationally related to the job, or it is necessary to avoid a conflict of interest. See the National Conference of State Legislatures’ website for a list of state statutes discussing employee off-duty conduct.

While the term “lawful activity” seems self-explanatory, a recent case in Colorado suggests otherwise. In that case, Coats v. Dish Network, LLC, Brandon Coats claimed that Dish wrongfully terminated him from his employment after he tested positive for a component of marijuana in a random drug test. Mr. Coats, who worked in Colorado where the use of medical marijuana is lawful, was a quadriplegic with a state-issued medical marijuana license. He argued that he never used marijuana on the job and that his use was, pursuant to state law, “lawful activity” that could not form the basis for his termination. Dish argued that since marijuana use is still barred by federal law it cannot qualify as “lawful” and the court agreed – in order to be “lawful” under the statute, the activity must be acceptable under both federal and state law. For more information, see The Wall Street Journal’s article on the court’s decision here.

As the medical use of marijuana gains acceptance in the States, it is unclear whether federal law will ever similarly expand. It is also unclear whether legal users will be protected from terminations, even when the use does not seem to affect job performance. The few court cases that have addressed the issue have not read the state laws to protect employees. However, at least two states, Arizona and Delaware, have passed laws that restrict the firing of medical-marijuana users to cases where the employee was impaired on the job.

Stay tuned as this area of the law continues to evolve!



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