By: Susan L. Swatski, Esq. ( and Bryan A. Coe, Summer Associate (

The legal landscape surrounding marijuana laws has drastically changed over the last decade. Currently, 23 states, including New Jersey and New York, allow the use of medical marijuana despite the federal government’s classification of marijuana as a schedule 1 illegal drug. Pennsylvania currently has legislation pending to legalize the use of medical marijuana. The conflict between state and federal law leaves employers in states that protect against retaliation for an employee’s lawful activities guessing whether they can test for, and prohibit, the use of medical marijuana. A recent Colorado Supreme Court unanimous decision may help to alleviate some of this guesswork.

In Coats v. Dish Network, the court considered whether medical marijuana use was a “lawful activity” under Colorado’s Lawful Activities statute. This statute made it illegal for an employer to terminate an employee for engaging in a lawful activity, off the premises, during non-working hours. The plaintiff in the case, is a registered medical marijuana patient, who brought suit against his former employer for wrongful termination after he was fired for using medical marijuana outside of work hours. In determining the meaning of a “lawful activity”, the court rejected the argument that the Colorado State Assembly intended “lawful” to mean lawful under Colorado law. The court found that a “lawful activity” is an activity which complies with state and federal law. As a result, the court found that because the plaintiff’s medical marijuana use was illegal under federal law, the use was not protected by Colorado’s Lawful Activities statute.

New Jersey’s medical marijuana law has a provision where employers are not required to “accommodate the medical use of marijuana in any workplace.” New York’s medical marijuana law classifies patients as “disabled” making it illegal for employers to discriminate against medical marijuana users. New York’s law precludes an employer from taking disciplinary action against certified medical marijuana users for failing a drug test. Further, employers may need to make a reasonable accommodation for an employee who uses medical marijuana, although this second point is still contentious and unsettled. Pennsylvania’s pending legislation is similar to New York’s in that an employer could not consider a positive drug test for marijuana when making an employment decision unless that employee was impaired by or possessed marijuana while on the employers premises or during working hours.

The Dish Network decision follows decisions from courts in California, Oregon, and Washington – each of these states permit the use of medical marijuana – that employers can fire an employee for medical marijuana use. The legal landscape surrounding the medical use of marijuana remains dynamic, particularly as support grows for the federal government lightening its stance on medical marijuana’s drug classification. All businesses that have drug testing policies should be aware of this changing legal landscape.

Employers should seek legal counsel to accurately assess their drug testing policies to confirm compliance with all applicable laws. If you feel this is an area of concern for your business, seek legal counsel from one of our skilled employment law attorneys. We are ready to help.