Colorado Employers' Zero-Tolerance Drug Policies Trump Medical Marijuana Laws

  • Posted by: J. Kent Gervasini |
  • 6/28/15 |
  • 4:01 PM
Colorado Employers' Zero-Tolerance Drug Policies Trump Medical Marijuana Laws

Colorado employers’ zero-tolerance drug policies trump Colorado’s medical marijuana laws, the Colorado Supreme Court ruled on Monday, June 15, 2015.  In a 6-0 decision, the high court affirmed lower court rulings that an employee using medical marijuana and working for a company with a zero-tolerance policy prohibiting drug use can be terminated if they fail a drug test.

Employer May Fire Employee for Use of Medicinal Marijuana – Even If It’s Off Duty
The case involved a Dish Network employee who was a quadriplegic, had a state-issued license to use medical marijuana to control seizures, and used the drug only during nonworking hours. The employee consumed the marijuana at home, after work.  After testing positive for tetrahydrocannabinol following a random drug test, Dish Network terminated the employee’s employment for violating its drug policy. The employee did not file a claim for failing to make a reasonable accommodation under the Americans with Disabilities Act (ADA), but rather claimed that his termination violated the Colorado state statute that prohibits employers from terminating employees for engaging in “lawful activities” off the premises of the employer during non-working hours.

Medical Marijuana – Lawful in Colorado, Still Unlawful Under Federal Law
While the use was clearly lawful under Colorado state law (for both medical and recreational use), the Colorado Supreme Court held that the statute did not limit the definition of “lawful activities” to just state laws, and since the use of marijuana (even for medicinal purposes) is still unlawful under federal law, the employer’s decision to terminate did not violate Colorado’s state statute.

Colorado’s “Lawful Off-Duty Activities” Statue Has Been Tested
At the crux of the issue was whether the use of medical marijuana — which is in compliance with Colorado's Medical Marijuana Amendment — was "lawful" under the state's Lawful Off-Duty Activities Statute.

Zero Tolerance Drug Policy – Promotes Safe, Productive Work Environments & Limits Liability
In his April 21, 2014 article, Colorado Employers May Have a “Zero Tolerance Marijuana Policy”, Denver Attorney, Stephen DeHoff, a business and employment law partner at the Denver-based firm, Fortis Law Partners, LLC., strongly urged employers to protect themselves and implement strong workplace safety policies.  Although current Colorado law allows employers to set their own policies on drug use, DeHoff’s message that employer’s should continue to implement and apply workplace and hiring policies that promote a safe and productive environment to include a “zero-tolerance” drug policy has certainly played out the Colorado higher court’s decision.

The information above does not constitute legal advice. Employers and Denver staffing and temporary agencies should consult a Colorado labor or employment attorney with additional questions, or for guidance and more information. 

The Denver Post - Colorado Suprement Court: Employrs Can Fire for Off-Duty Post Use

Lexoglogy - Employer May Fire Employee for Use of Medical Marijuana  

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