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.
