Colorado Supreme Court Upholds Firing of Medical Marijuana User

Nick Fishman

Colorado

Lately, when it comes to substance abuse screening, the first question employers always ask us is whether it’s legal to deny employment or fire someone who tests positive for drugs even though they have a prescription for medical marijuana in a state where pot smoking is legal. Thanks to a unanimous 6-0 decision by a Colorado court the answer appears to be, yes.

As you probably know, the state of Colorado has legalized the use of marijuana, both for medical and recreational purposes. However, the state also allows employers to establish their own drug-testing policies.

Employee Fired for Positive Drug Test

Dish Network fired Brandon Coats after he tested positive for marijuana in 2010. Even though there was no evidence of drug use during work hours, the company cited their no-tolerance policy as the reason for termination. To be fair, this was probably not the easiest of decisions for Dish. Coats is a quadriplegic who was using marijuana to control seizures. The other side is that they have an obligation to protect their employees, their customers and the organization from anything that could happen if there were an incident while an employee engaged in drug use.

Courts Unsympathetic to Coats (Legal or Not)

Coats sued Dish Network for wrongful termination claiming that they violated the state’s Lawful Off-Duty Activities Statute, which prohibits employers from firing employees for smoking pot or other behaviors that occur while employees are off the clock.. Both the trial courts and the district court of appeals ruled against him. He then appealed the case to the state’s Supreme Court which affirmed the lower court’s decision.

The court concluded that in order for the practice to be truly lawful (and in this case protected) that it would have to be legal both at the state and federal level, which it is not.

As part of it’s ruling the court pointed out that, “The supreme court holds that under the plain language of section 24-34-402.5, C.R.S. (2014), Colorado’s ‘lawful activities statute,’ the term ‘lawful’ refers only to those activities that are lawful under both state and federal law. Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute. We therefore affirm the court of appeals’ opinion.”

While instructive, this decision is hardly groundbreaking. In fact, courts in the state of California, Montana and Washington have all ruled in favor of the employer in similar cases.

What Can You Do?

Regardless of this decision and others like it, employers continue to struggle determine what to do in the face of mounting marijuana legalization statutes. Here are 5 do’s and don’ts to consider as you weigh your options.

  • Do review your drug-free workplace policy and substance abuse testing program with your legal counsel.
  • Don’t stop enforcing your drug policy solely because of state marijuana laws.
  • Do apply your drug testing policies fairly and consistently.
  • Don’t terminate or disqualify someone without careful consideration and adherence to policies, particularly in light of medicinal or “legal” recreational use.
  • Do consider the health and safety of all of your workers in the application of your drug screening policy.
Nick Fishman
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Nick Fishman

Nick Fishman is the co-founder of EmployeeScreenIQ, a leading, global employment background screening provider, and serves as the company’s executive vice president and chief marketing officer. He pioneered the creation of EmployeeScreen University, the #1 educational resource on employment background checks for human resources, security and risk management professionals. A recognized industry expert, Nick is a frequent author, presenter and contributor to the news media. Nick is also a licensed private investigator in the states of Ohio and Texas.
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