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Can an Employee be Fired for Using Marijuana?

On November 6, 2012, Colorado voters approved Amendment 64, which made it legal under state law for those over age 21 to possess, use, manufacture, and commercially sell marijuana.  Amendment 64 was codified in Article XVIII, Section 16 of the state constitution.  However, marijuana remains illegal as a “schedule 1” controlled substance under the federal Controlled Substances Act.   This conflict between state and federal law has created a host of complex legal issues, many of which remain unresolved by the courts.

Amendment 64 itself addressed concerns about marijuana in the workplace.  Specifically, the text of the constitutional provision implementing Amendment 64 provides that “[n]othing 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.”  A similar provision applies to the use of medical marijuana in the workplace.   Indeed, Colorado’s Medical Marijuana Amendment provides that “[n]othing in this section shall require any employer to accommodate the medical use of marijuana in any work place.”

It would seem clear, then, that Colorado’s recreational and medical marijuana laws were never intended to give employees any marijuana-related protections in the realm of employment.

However, a potential conflict appeared in the context of Colorado’s “lawful off-duty activities” statute, C.R.S. § 24–34–402.5.  That statute generally makes it unlawful for an employer to terminate the employment of any employee due to that employee’s engaging in a lawful activity, off the premises of the employer during nonworking hours.  Perhaps ironically, Section 24–34–402.5 was originally intended to be a “Smoker’s Bill of Rights,” which protected tobacco smokers from discrimination by employers.  Thus, given that consuming marijuana is legal under state law, a question arose as to whether the “Smoker’s Bill of Rights” would forbid an employer from terminating an employee for smoking pot outside of work.

This question was recently answered in the court case Coats v. Dish Network.  There, the plaintiff, Brandon Coats, was a quadriplegic and medical-marijuana user licensed under Colorado law.  The facts in the case showed that Mr. Coats only used marijuana within the limits of his license, he never used marijuana on Dish Network’s premises, and he was never under the influence of marijuana at work.   Dish Network fired Mr. Coats after he tested positive for marijuana, which established a violation of Dish Network’s established drug policy.  Mr. Coats filed an action under the “Smoker’s Bill of Rights” seeking damages for his wrongful discharge.  The Colorado Court of Appeals first acknowledged that all activities conducted in Colorado are subject to both state and federal law.  Therefore, for an activity to be “lawful” in Colorado, it must be permitted by, and not contrary to, both state and federal law.  Since Mr. Coats’ state-licensed medical marijuana use was prohibited by federal law, the court held that it was not a “lawful activity” for the purposes of the “Smoker’s Bill of Rights.”  Therefore, Dish Network acted lawfully when it terminated Mr. Coats’ employment.

Another marijuana-in-the-workplace issue arises in the context of the Americans with Disabilities Act (“ADA”) and its state law equivalent the Colorado Anti-Discrimination Act (“CADA”).  To establish a claim of wrongful discharge under the ADA and CADA, a terminated employee must typically prove: (1) that the employee is a “qualified individual with a disability,” (2) that the employee was qualified for the job, and (3) that the termination occurred because of the employee’s disability.   In the context of the use of medical marijuana, an issue could arise as to whether an employee may have protections under the ADA or CADA when an employee uses marijuana to treat well-established disabilities such cancer, glaucoma or nerve pain.

In such cases, courts may focus their inquiry on provisions within the ADA that govern users of illegal drugs.  As described above, the Coats decision appears to establish that the use of marijuana remains “illegal” for the purposes of both state and federal employment laws.   Although the status of being an illegal drug user sometimes merits protection under the ADA, an employee is not “a qualified individual with a disability” if he or she is “currently” engaging in the use of illegal drugs.  Unfortunately, the courts have struggled to define when an employee is “currently” engaged in the use of drugs.  Is an employee “currently” using drugs if he or she used drugs in the past week?  How about the past month?  Unfortunately, no bright-line rule exists.   At best, employers can likely rely upon recent precedent establishing that an employee does not meet the safe harbor requirements if “the drug use was sufficiently recent to justify the employer’s reasonable belief that the drug abuse remained an ongoing problem.”  Nonetheless, an employer would be wise to consider the ADA when considering the discharge of an employee who is a “current” user of medical marijuana.

For questions about this article please contact Cinthia Manzano.

Damien Zumbrennen is no longer with the law firm of Frascona, Joiner, Goodman and Greenstein, P.C.
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