Coats v. Dish Network, LLC 2015 CO 44, 350 P.3d 849 (2015)

Brandon Coats, a quadriplegic, has been in a wheelchair since he was a teenager. He has a Colorado state-issued license to use medical marijuana to treat painful muscle spasms caused by his quadriplegia. He consumes the medical marijuana at home, after work, and in accordance with his license and Colorado state law.

Coats worked for Dish Network for three years as a telephone customer service representative. After testing positive for THC, as a result of his marijuana use, in a random drug test, he was terminated for violating the company's drug policy.

Coats brought an employment discrimination action against his employer, claiming that his termination was based on his state-licensed use of medical marijuana, in violation of the lawful activities statute, which made it an unfair and discriminatory labor practice to discharge an employee based on the employee's lawful outside-of-work activities. The Colorado Supreme Court held that an activity (such as medical marijuana use) that is unlawful under federal law is not a "lawful" activity under the lawful activities statute, and the employee could be terminated for his use of medical marijuana in accordance with the Medical Marijuana Amendment of the Colorado state constitution.

Eid, J.

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II.

We review de novo the question of whether medical marijuana use prohibited by federal law is a "lawful activity" protected under [Colorado's "lawful activities statute"].

The "lawful activities statute" provides that "[i]t 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 anylawful activityoff the premises of the employer during nonworking hours" unless certain exceptions apply. An employee discharged in violation of this provision may bring a civil action for damages, including lost wages or benefits.

By its terms the statute protects only "lawful" activities. However, the statute does not define the term "lawful." Coats contends that the term should be read as limited to activities lawful under state law. We disagree.

In construing undefined statutory terms, we look to the language of the statute itself "with a view toward giving the statutory language its commonly accepted and understood meaning"People v. Schuett.We have construed the term "lawful" once before and found that its "generally understood meaning" is "in accordance with the law or legitimate."See id.(citingWebster's Third New International Dictionary(1986)). Similarly, courts in other states have construed "lawful" to mean "authorized by law and not contrary to, nor forbidden by law."Hougum v. Valley Memorial Homes(defining "lawful" as used in similar lawful activities provisions);In re Adoption of B.C.H.("Upon our review of the plain and ordinary meaning

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of 'lawful custody,'... 'lawful' means 'not contrary to law.'"). We therefore agree with the court of appeals that the commonly accepted meaning of the term "lawful" is "that which is 'permitted by law' or, conversely, that which is 'not contrary to, or forbidden by law.'"

We still must determine, however, whether medical marijuana use that is licensed by the State of Colorado but prohibited under federal law is "lawful" for purposes of [Colorado's "lawful activities statute"]. Coats contends that the General Assembly intended the term "lawful" here to mean "lawful under Colorado state law," which, he asserts, recognizes medical marijuana use as "lawful." We do not read the term "lawful" to be so restrictive. Nothing in the language of the statute limits the term "lawful" to state law. 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. We therefore decline Coats's invitation to engraft a state law limitation onto the statutory language. SeeState Dep't of Revenue v. Adolph Coors(declining to read a restriction into unrestricted statutory language);Turbyne v. People(stating that "[w]e do not add words to the statute").

Coats does not dispute that the federal Controlled Substances Act prohibits medical marijuana use. The CSA lists marijuana as a Schedule I substance, meaning federal law designates it as having no medical accepted use, a high risk of abuse, and a lack of accepted safety for use under medical supervision. This makes the use, possession, or manufacture of marijuana a federal criminal offense, except where used for federally approved research projects. There is no exception for marijuana use for medicinal purposes, or for marijuana use conducted in accordance with state law.Gonzales(finding that "[t]he Supremacy Clause unambiguously provides that if there is any conflict between federal and state law, federal law shall prevail," including in the area of marijuana regulation).

Echoing Judge Webb's dissent, Coats argues that because the General Assembly intended [Colorado's "lawful activities statute"] to broadly protect employees from discharge for outside-of-work activities, we must construe the term "lawful" to mean "lawful under Colorado law." In this case, however, we find nothing to indicate that the General Assembly intended to extend [Colorado's "lawful activities statute"]'s protection for "lawful" activities to activities that are unlawful under federal law. In sum, because Coats's marijuana use was unlawful under federal law, it does not fall within [Colorado's "lawful activities statute"]'s protection for "lawful" activities.

Having decided this case on the basis of the prohibition under federal law, we decline to address the issue of whether Colorado's Medical Marijuana Amendment deems medical marijuana use "lawful" by conferring a right to such use.

III.

For the reasons stated above, we affirm the decision of the court of appeals.

1. How does the court determine that Coats' employment was lawfully terminated, despite the fact that medical marijuana use is permitted under Colorado law? Does it matter that the federal government is turning a blind eye to individuals who use medical marijuana (it has not overturned the statute classifying marijuana as a Schedule I substance) and is not seeking out medical marijuana users to prosecute, despite that it is illegal under federal law?
2. How should employers deal with the use of medical marijuana use by their employees? Should an employer simply prohibit all use of marijuana? Why may it be in an employer's interests to permit the use of medical marijuana? How can employers, such as Dish Network, avoid such lawsuits in the future?