On January 1st, about thirty-seven stores across the state of Colorado were able to legally sell marijuana for recreational use for the first time, as a result of the state’s legalization and regulation of the drug pursuant to a law passed on November 2012. Many marijuana activists have celebrated the passage of this law as a great success for their efforts. However, employees must be aware that the new law includes a provision allowing employers to retain the ability to have policies restricting their employees’ use of marijuana.
Pursuant to Amendment 64 of the new law, employees opting to consume recreational marijuana in the privacy of their homes may be subject to dismissal by employers who decide to administer drug tests, despite the fact that Colorado allows for legal consumption of the drug. Because urine drug tests, which are the tests commonly used by employers, do not indicate when the drug was last ingested, a positive result does not allow employers to determine whether the drug was used during working hours or not. Under the Amendment, employers retain full discretion to establish their marijuana policies. As a result, employers having a strict no-drug policy may thus not care whether the employee consumed the drug during non-working hours and the law does not provide protections for employees.
Critics of this provision argue that Amendment 64 imposes a double standard because employees will face the risk of being penalized for consuming marijuana while off-duty, whereas they do not face this risk for consuming alcohol in the privacy of their homes. Furthermore, an employer may decide to fire an employee based on the results of a medical tests even where the employee’s off-duty activities do not affect his or her performance.
A 2013 decision in the Colorado Court of Appeals showed that even individuals using marijuana for medical uses may be fired by an employer with a strict no-drug policy. In Coats v. Dish Network, LLC, the court decided that employees are not protected by Colorado’s Lawful Off-Duty Activities Statute because marijuana continues to be illegal under federal law. (See 24-34-402.5. “Unlawful prohibition of legal activities as a condition of employment”)The Off-Duty Activities Statute establishes that employers cannot fire employees for engaging in legal activities while off-duty. Coats concerned a medical-marijuana patient who was fired by Dish Network from his position as a telephone operator because he did not pass a random drug test administered by the company. Coats argued that Dish Network could not fire him because he used marijuana off the clock for medical purposes in order to cope with constant muscle spasms after he suffered a car accident, which left him as a quadriplegic. However, the court rejected these arguments, citing Beinor v. Industrial Claim Appeals Office of the State of Colorado and Service Group, Inc., a 2011 decision where the Colorado Court of Appeals established that the state constitution merely guarantees a patient’s right not to be prosecuted for consuming marijuana for medical purposes. As result, this decision suggests that what is illegal at a federal level falls outside of Colorado’s Off-Duty statute.
If you believe you have been wrongly terminated from your job, please contact The Harman Firm, LLP.