In 1964 Bob Dylan wrote, “[t]he line it is drawn, the curse it is cast. The slow one now, will later be fast. As the present now, will later be past . . . For the times they are a-changin’.” In light of evolving marijuana laws, this message of change now seems truer than ever.

The story of cannabis in the United States is a long and winding tale. In America’s early years, English settlers were encouraged and, in some colonies, required to grow and export Hemp, a variety of the cannabis plant that contains minimal THC levels–the psychoactive element in marijuana. During that time, Hemp was used in many products, from paper to sails, and was a major cash crop. Cannabis containing higher THC levels, modern day marijuana, was introduced to America in the early twentieth century and it was used for recreational and medicinal purposes. It was even sold openly in pharmacies across America. By the 1950’s the federal government and all of the states had enacted laws criminalizing and prohibiting marijuana use for all purposes, due to an increasing belief that marijuana was linked to criminal activity. However, this prohibition took a turn in the 1990’s when states began to pass voter initiatives permitting marijuana use for medicinal and/or recreational purposes.

Since then, the legal landscape surrounding marijuana has changed drastically. Currently, 23 states and the District of Columbia permit marijuana use for medical purposes. Twenty states have approved legislation reducing or abolishing criminal penalties for marijuana use, also known as decriminalization. In addition, four states and the District of Columbia now permit recreational marijuana use. This includes Idaho’s neighboring states: Colorado, Oregon, and Washington. The federal government and Idaho, however, still prohibit all marijuana use.

As a result of the inconsistency between federal and state law, much confusion has arisen as to whether employers have the right to implement and enforce drug policies prohibiting marijuana use. This confusion impacts Idaho employers because many Idaho employees commute to work in Idaho from cities in neighboring states, like Pullman, Washington or Ontario, Oregon, which allow recreational and/or medicinal marijuana use.

According to a 2015 Colorado Supreme Court decision, Coats v. Dish Network, LLC, employees may want to think twice before lighting up, even in states where marijuana is legal for recreational or medicinal purposes. The plaintiff in Coats was quadriplegic. He had lawfully obtained a medical marijuana prescription and used marijuana to manage his pain during nonworking hours. Dish Network terminated his employment after he tested positive for marijuana during a random drug screening. He then brought suit against Dish Network for wrongful termination based on a Colorado’s lawful activities statute, “which generally prohibits employers from terminating an employee based on his engagement in ‘lawful activities’ off the premises of the employer during nonworking hours.”

In its decision, the Colorado Supreme Court held that pursuant to Colorado’s lawful activities statute, the term “lawful” refers only to activities that are lawful under both state and federal law. Thus, even in states where marijuana use is lawful, employers retain the right to fire an employee in accordance with their internal drug policies because marijuana use is still illegal pursuant to federal law.


Even though the Colorado Supreme Court’s decision in Coats is not binding precedent in Idaho, it suggests that states, even at the forefront of marijuana legalization, still support employer’s rights to implement and enforce drug policies. So while “the times they are a changin’,” as long as an employer’s drug policies remain consistent with other applicable federal and state laws, Idaho employers likely have the right to terminate an employee for off duty marijuana use–even if such use is legal in the employee’s home state.

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.