Human Resource & Labor News
www.agc.orgAugust 18, 2015 / Issue No. 04-15
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On the Inside
Wage & Hour
Proposed Changes to Overtime Regulations Announced; AGC Prepares to Comment
DOL Issues Administrator's Interpretation Concluding Most Workers are Employees Under the FLSA
HR Professional Development
Construction HR & Training Professionals Conference Offers Continuing Education Credits
Employee Benefits
ACA Regulations Regarding Summary of Benefits & Coverage Requirements Finalized
Multiemployer Pension Reform Regulations Issued
AGC Submits Comments to EEOC on Proposed Wellness Rule
Affirmative Action
New Checklist Available to Help Contractors Assess Compliance with OFCCP’s Disability Rule
New Infographic Helps Veterans Determine Their Status under VEVRAA
Union Organizing
NLRB “Quickie Election” Rule Survives Second Legal Challenge
Drug Testing
AGC Successfully Defends Zero-Tolerance Drug Policy
Drug Testing
AGC Successfully Defends Zero-Tolerance Drug Policy

Siding with AGC of America, the AGC of Colorado and the Colorado Contractor’s Association, the Colorado Supreme Court has unanimously held that a state law insulating Colorado residents from prosecution for making medical use of marijuana does not require the state’s employers to tolerate the same or apparently any other use of the drug.  The decision extends well beyond employees who use marijuana on the job, or show up under the influence of it.  In fact, the case involved an employee who used marijuana only at home and during non-working hours. 

Strictly speaking, the case is limited to the medical use of marijuana but its logic would extend to any recreational use that the state has similarly sought to decriminalize.  How the case will affect other states, and how they interpret and apply any similar laws that they have adopted, is much harder to predict.  In the absence of much or any other case law on the other state laws that seek to legalize marijuana, the case could influence thinking outside Colorado.

The name of the case is Brandon Coats v. Dish Network.  The ultimate question that it presented was whether a Colorado employer could lawfully discharge an employee for violating its zero-tolerance drug policy even where the only drug that the employee had used was marijuana and his use of the drug was off of the employer’s premises, during nonworking hours, and in accordance with state law. 

At the center of the legal debate was Colorado’s Lawful Off-Duty Activities Statute (LODAS), which generally prohibits the state’s employers from discharging employees for “engaging in any lawful activity.”  Under the circumstances, the employee’s use of marijuana did not violate state law.   The employee alleged and his employer did not dispute that he was licensed by the state of Colorado to make medical use of marijuana and that he used it within the limits of his license.  His use of the drug did, however, violate federal law, and the narrow legal question that the case presented was therefore whether LODAS refers to state law, federal law or both.

The trial court sided with the employer on the theory that state law merely provided the employee with an affirmative defense to criminal prosecution and did not go so far as to transform his medical use of  marijuana into “lawful activity.”  The Colorado Court of Appeals also sided with the employer but on the different theory that the employee’s activity was not “lawful” because it still violated federal law.      

Yesterday, the Colorado Supreme Court unanimously agreed with the court of appeals.  It declined “to engraft a state law limitation” on the meaning of “lawful,” and explained that LODAS used the term “in its general, unrestricted sense, indicating that a ‘lawful’ activity is that which complies with applicable ‘law,’ including state and federal law.”

In May of 2014, AGC of America joined its Colorado chapters and several other business organizations in filing a friend-of-the-court brief in the Colorado Supreme Court in support of the employer’s zero-tolerance policy.  The brief relied on the plain language of LODAS and warned that any contrary ruling would create conflicts with other Colorado laws and federal laws, including the Drug Free Workplace Act of 1988 and federal regulations relating to transportation.  Yesterday’s decision is a significant victory for the association.

For additional information on the various state laws that seek to legalize marijuana and how employers are responding to them, please contact Denise Gold at or Tamika Carter at  Additional information is also available on the AGC web site.  After logging in at, go to the Labor & HR Topical Resources area at, then select the main category “Other HR Issues” and the subcategory “Drug & Alcohol Use and Testing.”
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