Brandon Coats was an employee of Dish Network in Colorado where Dish had a zero tolerance drug policy. Coats had a prescription for medical marijuana although claimed that he never used marijuana while at work. A drug test result of Coats revealed use of marijuana and he was fired from his job. Coats sued his employer, claiming, among other things, that Dish violated a state law which prohibits employers from taking adverse action against employees as a result of lawful off duty activities.
The Colorado Supreme Court found in favor of Dish, holding that although use of marijuana was legal in the state for certain medical conditions (and during the pendency of the case, the state made recreational use of marijuana legal as well), marijuana use was still illegal under federal law. The court found that Coats could not rely on state protections of lawful off duty activities because marijuana use was not entirely lawful, as it was illegal under federal law.
The Colorado decision is not binding on Illinois courts, although Illinois has a similar law protecting workers from adverse action for lawful off duty conduct. The Right to Privacy in the Workplace Act provides in pertinent part as follows:
820 ILCS 55/5Sec. 5. Discrimination for use of lawful products prohibited.(a) Except as otherwise specifically provided by law and except as provided in subsections (b) and (c) of this Section, it shall be unlawful for an employer to refuse to hire or to discharge any individual, or otherwise disadvantage any individual, with respect to compensation, terms, conditions or privileges of employment because the individual uses lawful products off the premises of the employer during nonworking hours.
With some exceptions, this Act prohibits an employer from discharging an employee for drinking off duty, for example, or for having an abortion. The exceptions to this rule is if the employer is a non profit whose central mission is to dissuade or discourage such activity. The Act does not prevent employers from prohibiting use of drugs, even lawful drugs, during working hours because that activity can be a safety issue.
Medical marijuana use is still new in Illinois and the courts have yet to address its impact on employment. Marijuana use for any reason remains illegal under federal law. Unless federal law changes, courts here may look at decisions like that of the Colorado in deciding whether employees are protected from adverse action for their lawful off duty use of the drug.
Employers should take note that they remain well within their rights to enforce zero tolerance drugs policies in their workplaces. Sound public policy supports a prohibition of drug use that impairs an employee’s abilities, or is illegal, while at work.
