In Colorado today, the use of medical and recreational marijuana is legal under state law. However, medical and recreational use of marijuana is still illegal under federal law. This double standard has left many employers wondering whether they have the right to fire an employee for using marijuana. The short answer is yes, an employer has the right to fire an employee for marijuana use. This post discusses the status of the law and attempts to change the law.
History of Marijuana Constitutional Amendments in Colorado
Colorado voters have approved use of both medical marijuana and recreational marijuana. In 2000, Colorado passed Amendment 20, which amended the Colorado Constitution to permit the use of medical marijuana. In 2012, Colorado passed Amendment 64, which amended the Colorado Constitution again, this time legalizing the use of recreational marijuana.
Constitutional Protections for Employers
Despite the Constitutional protections for individuals to use medical and recreational marijuana, the Colorado Constitution also explicitly protects the rights of employers to have policies in place that restrict the use of marijuana by employees. The Colorado Constitution says this about medical marijuana, “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any workplace.” And the Colorado Constitution addresses recreational marijuana as follows, “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”
An employer’s right to restrict the use of medical marijuana by an employee was litigated in Colorado, and in 2015, the Colorado Supreme Court ruled in favor of the employer. In this case, a paraplegic who worked for Dish Network was fired in 2010 for testing positive for marijuana on a drug test. The employee had been prescribed medical marijuana for seizures and muscle spasms, following a car crash that left him paralyzed. Dish Network argued that even though he was not smoking on the job, it had a right to enforce its zero-tolerance policy. The Court agreed with Dish Network and upheld the rights of the employer. The Court addressed Colorado’s off-duty conduct law (C.R.S. § 24-34-402.5), which prohibits employers from firing an employee for engaging in legal activities on their own time and held that even if the use of marijuana is legal under state law, it is not legal federally, and therefore is not legal conduct under Colorado’s off-duty conduct law. The legal theory is that forbidding illegal conduct would not violate the Americans with Disabilities Act, because allowing illegal behavior cannot be a reasonable accommodation. While this case dealt explicitly with medical marijuana, its implications are much broader and cross-over to recreational marijuana use, which doesn’t even have the disability-based arguments.
Current Legislative Action
Proponents of marijuana use have written and in some cases already introduced bills that would change the law legislatively. In the United States Congress, legislation was introduced in July of 2018 that would make it unlawful for the federal government to deny employment or subject an employee to adverse action for testing positive for marijuana on a drug test if that employee is the resident of a state which permits the use of marijuana. There is an exception to this rule for employers who have probable cause to believe the employee is under the influence of marijuana in the workplace. Interestingly, this bill would also not protect an employee who requires “top secret clearance or access to a highly sensitive program.”
In Colorado, bill language has been drafted by a pro-marijuana group that would make it unlawful for an employer to fire an employee for testing positive for marijuana on a drug test. An employer would only have grounds to terminate employment if an employee was in possession of, using, or impaired by marijuana during work hours. This proposed bill language would amend the Colorado off-duty law to change the definition of lawful activity to activity that is lawful under state law, regardless of federal legality. This pro-marijuana group is currently looking for a Colorado state senator or state representative to introduce this bill language in this legislative session. This law would create a complicated standard. Marijuana stays in the system a long time, so there could be a lot of factual argument around “impairment.”
How Can Employers Prepare for a Marijuana-Based Situation?
First, employers should carefully state their own policies, considering the following questions. Would you allow use of medical marijuana? Marijuana in low-THC forms? No marijuana? Are you a religious organization with religious beliefs about the use of mind-altering substances? Are you a business that handles highly sensitive information (such as a law firm, medical practice, or government contractor)? Are you a business with significant physical dangers (such as working with heavy machinery)? If so, your policies should refer to your organization’s faith-based standards on using drugs. Also, describe your drug-testing policies. You may want to consider legal review of these and other employment policies.
In addition, be sure to consult legal counsel before firing an employee for marijuana use to make sure you comply with state and federal employment laws.