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Colorado Employers: You Can Discharge Employees for Using Medical Marijuana in Violation of Your Workplace Policies

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On June 15, in a unanimous decision, the Colorado Supreme Court held that employers may fire employees for use of medicinal marijuana, despite state laws permitting its recreational and medicinal use.

Colorado is one of only four states (along with Alaska, Oregon and Washington) which has legalized “recreational marijuana”, and is one of twenty-three states to authorize medical marijuana use. Colorado also has a “lawful activities statute” which provides protections to employees who engage in lawful off-duty conduct. However, in the case (Coats v. Dish Network) on appeal to the Supreme Court, because marijuana is illegal under federal law, it found that an employee cannot rely on that statute as a basis for consumption of the drug in violation of an employer’s zero-tolerance drug policy.

What this means for our Colorado members is that you can continue to administer drug-free workplace and testing policies, including taking adverse action of the basis of a positive marijuana test result even if the employee has a doctor’s prescription for medical marijuana. Importantly, employers may take this adverse employment action, including dismissal, against prospective and current employees based on their use of a substance deemed illegal under state and/or federal laws, without submitting themselves to liability under the unlawful activities statute. Employers should be sure that their policies clearly define illegal drug use to include all drugs made illegal under federal, state or even local law. Employers should ensure that any policies discussing prescription medications state clearly that unqualified prescription medication use is not authorized, as well as make sure as well that administration of testing policies and disciplinary decisions are fairly and consistently applied.

And, unless Congress either changes how marijuana is classified under federal law or, alternately, carves out protections for state-authorized medical marijuana users, employers should feel fairly safe for the time-being in administering their workplace drug policies. There are a handful of states (including Arizona, Delaware, Maine, Rhode Island and Nevada) which do have some workplace accommodation protections in their medical marijuana statutes, but most do not.

Finally, our Colorado members (and elsewhere) do not need to find accommodations under the Americans with Disabilities Act, as marijuana is illegal under federal law.

Hilary Atkins

Posted In: Legal

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