Off-duty Medical Marijuana Use Not Protected Under Lawful Activities Statute

• Publication year: 2013
• Pages: 103

42 Colo.Law. 103 Off-Duty Medical Marijuana Use Not Protected Under Lawful Activities Statute Vol. 42, No. 7 [Page 103] The Colorado Lawyer July, 2013

Labor and Employment Law

Off-Duty Medical Marijuana Use Not Protected Under Lawful Activities Statute

By John M. Husband

Labor and Employment Law articles are sponsored by the CBA Labor and Employment Law Section to present current issues and topics of interest to attorneys, judges, and legal and judicial administrators on all aspects of labor and employment law in Colorado.

Coordinating Editor

John M. Husband, Denver, of Holland & Hart LLP-(303) 295-8228, jhusband@hollandhart.com

Colorado employers have struggled when making termination decisions due to an employee's off-duty, legal use of marijuana. One potential risk-whether such a termination would violate Colorado's lawful activities statute-recently was laid to rest.

In a much-anticipated decision, the Colorado Court of Appeals recently ruled that terminating an employee who tested positive for marijuana following his off-duty, off-premises use of medical marijuana did not violate Colorado's lawful activities statute.^[1] The Coats v. Dish Network opinion offers employers the first direct guidance on their ability to enforce drug-free workplace policies despite the legalization of both medical and recreational marijuana use in Colorado.

First Medical Marijuana, Then Recreational Marijuana

Since the decriminalization of medical marijuana in 2000 and the legalization of recreational marijuana in 2012, Colorado employers have struggled with how to handle employees who legally use marijuana outside work hours. Before the April 2013 Coats decision, Colorado courts had not directly addressed whether employers could fire workers for marijuana use off an employer's premises.

Passed in 2000, Amendment 20, which insulates registered users of medical marijuana from criminal prosecution, expressly provides that employers are not required to accommodate employees' medicinal marijuana use in the workplace.^[2] The constitutional amendment, however, fails to clarify whether employers could prohibit employees from reporting to work under the influence of, or having trace amounts of, the drug in their systems.

Similarly, Amendment 64, passed by Colorado voters in November 2012, states that employers are not required to "permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace."^[3] Amendment 64 also provides that employers retain the ability to have employment policies restricting the use of marijuana by employees.^[4] However, it remained unclear as to whether an employer's restrictions could extend to prohibit employees' off-duty, off-premises use of marijuana. This uncertainty caused employers and employee advocates to clash over employer authority to discipline and/or terminate employees for off-duty marijuana use.

Unemployment Case Favors Employer's Termination Decision

In 2011, employers got their first look at how a Colorado court would consider the issue of off-duty medical marijuana use. In Beinor v. Industrial Claim Appeals Office, the Colorado Court of Appeals upheld the denial of unemployment insurance benefits to an employee terminated for violating his employer's zero-tolerance drug policy after testing positive for marijuana in a random drug test.^[5] The...