More than four years ago, the Colorado Supreme Court issued an opinion regarding Coats vs. DISH Network, in which a lower court’s decision reinforced the right of employers to have and enforce a zero-tolerance drug policy. A new bill in Colorado may affect similar cases and protect employees who use marijuana while off duty. 

Colorado House Bill 20-1089 (HB20-1089), Employee Protection Lawful Off-duty Activities would “prohibit an employer from terminating an employee for the employee's lawful off-duty activities that are lawful under state law even if those activities are not lawful under federal law.” 

The bill is a clarification of the state’s Lawful Off-Duty Activities Statute (C.R.S. 24-34-402.5), which allows that employees cannot be fired for participating in any lawful activity while off the clock. For example, a person may be fired for drinking in the workplace, but they may not be fired for having a cocktail at home if they are above the legal drinking age. The statute came into play in the Coats v. DISH Network case. 

The clarification would allow for employees who use marijuana while not on duty for work. While marijuana use is not allowed under federal law, it is permitted by Colorado state law. If HB20-1089 becomes law, an employer could not terminate an employee for off-duty use of marijuana in Colorado. 

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