Medical Marijuana and Employment – New Developments

By Ann E. Christoff of Barkley Martinez, P.C

Medical marijuana use is booming.  As of late 2011, over 161,000 Coloradans have applied for Medical Marijuana Registration Identifications and over 80,000 Coloradans possess valid Registry IDs.  Colorado is just one of sixteen states to pass medical marijuana laws, and another seventeen states have legislation in the pipeline.  This flourish raises new employment issues:  how do employee rights balance with employers’ interests in a drug-free workforce?  Courts are currently addressing such issues.  Some points, however, are clearly established.

First, any and all use of marijuana – even medical – is illegal under federal law.  Congress has placed marijuana in Schedule I of the Controlled Substances Act; therefore, growing, distributing, or possessing marijuana in any capacity, other than federally authorized research programs, is a violation of federal law.  Although the Colorado Constitution provides an affirmative defense to criminal prosecution for marijuana use, Colorado law does not legalize marijuana.  State law does not override federal law.

Second, the only medical marijuana provision in the Colorado Constitution that refers to employment states:  “Nothing shall require any employer to accommodate the medical use of marijuana in any workplace.”  So, employers do not have to allow medical marijuana use at work.  But if an employee uses medical marijuana outside of work, can the employer lawfully discharge the employee?  Employees are now testing Colorado’s Lawful Off-Duty Activities Statute as a basis for claiming that they must be allowed to use medical marijuana.

Colorado trial courts are beginning to tackle these arguments.  In Coats v. DISH Network L.L.C., a lawsuit filed in Arapahoe County Court, – where this law firm represented the employer the plaintiff (former employee) argued that his use of medical marijuana was a lawful off-duty activity, and therefore his termination violated Colorado’s Lawful Off-Duty Activity Statute, C.R.S. § 24-32-402.5. The Court disagreed and dismissed the case on February 29, 2012, holding: “use of marijuana, even where such use is in full compliance with Colorado’s Medical Marijuana Amendment, is not a lawful activity.”  Coats may soon be appealed. (Please contact us for updates: 303.597.4000.)

The Colorado Court of Appeals has not yet addressed the issue but indicated which way it would go: “the Colorado Constitution does not give medical marijuana users the unfettered right to violate employers’ policies and practices regarding use of controlled substances.”  Beinor v. Industrial Claim Appeals Office.  It also gave a friendly nod to another state’s resolution of the issue, noting that in Roe v. Teletech Customer Care Management (Colorado) LLC, the Supreme Court of Washington concluded that the Medical Use of Marijuana Act (with similar provisions to Colorado law) does not prohibit an employer from discharging an employee for off-duty medical use of marijuana.

Employers may be uncertain how to reduce exposure to liability.  Until Colorado’s higher courts lift the haze, employers should make sure that their job applications contain information on drug testing, and that their zero tolerance policies are clearly communicated (upon hire and during employment) and uniformly enforced.  Getting the appropriate acknowledgements/releases and policies in place – and staying on top of this topic – is crucial.

Barkley Martinez, P.C. is a woman-owned Denver law firm specializing in employment law (litigation and counseling) and appeals. Barkley Martinez, P.C.’s clients range from individuals to Fortune 100companies in various industries, including engineering, satellite broadcasting,utilities, home building and hospitality.  Combined, the firm has over fifty years of experience in employment litigation, counseling, and appeals.

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