For Employers, Recent Decision Highlights Complexity of Medical Marijuana Laws

Friday, July 17, 2015

Last month, the Colorado Supreme Court affirmed the right of an employer to terminate an employee who tests positive for marijuana in violation of the employer’s drug policy.  Although the impact of the decision is largely limited to Colorado, as the case involved only the interpretation of Colorado law, it nonetheless highlights the complex legal landscape that employers face as they navigate both state and federal laws governing marijuana usage.

The employee in this case used medical marijuana off-duty to ameliorate a health condition, a practice permitted under Colorado’s constitution.  At the time of testing, the employee was not under the influence of marijuana, nor was there any evidence that he had used marijuana at work or had been under the influence at work during other times.  The employer, however, had a zero-tolerance drug policy, and when the employee tested positive, it terminated his employment.  The employee sued, claiming that his termination violated Colorado’s off-duty conduct statute, which provides that employers may not terminate employees for engaging in any “lawful activity off the premises of the employer during non-working hours.”

The key issue for the Colorado Supreme Court was whether the employee’s medical marijuana use was a “lawful activity.”  Notwithstanding Colorado’s constitutional amendment allowing for the use of medical marijuana, the Court concluded that for an activity to be “lawful” under the off-duty conduct statute, it must be lawful under both state and federal law.  Because marijuana use remains unlawful under federal law, the Court held that the employee had not engaged in a “lawful activity” that prohibited his termination.

Because only Colorado law was at issue in the Court’s decision, the case is not likely to have immediate impacts in other jurisdictions with medical marijuana laws.  Unlike Colorado, for example, Maine’s medical marijuana statute provides certain employment-related protections that, for obvious reasons, were not at issue in the case.  Nonetheless, the case highlights the continuing divide between federal and state law and the need for employers to proceed with caution in this area.