The Colorado Court of Appeals issued its opinion in Beinor v. Industrial Claim Appeals Office on August 18, 2011.
Unemployment Compensation Benefits—Medical Marijuana—Zero-Tolerance Policy—Colo. Const., art. XVIII, § 14.
Petitioner Beinor appealed the final order of the Industrial Claim Appeals Office (Panel) disqualifying him from unemployment compensation benefits. The order was affirmed.
Petitioner contended that he was entitled to benefits because he legally obtained and used marijuana for a medically documented purpose and consequently had a right to consume the drug. This case raises a question of first impression: whether an employee terminated for testing positive for marijuana in violation of an employer’s zero-tolerance drug policy may be denied unemployment compensation benefits even if the worker’s use of marijuana is “medical use” as defined in Colo. Const., art. XVIII, § 14.
The medical use of marijuana by an employee holding a registry card under Colo. Const., art. XVIII, § 14 is not pursuant to a prescription, and therefore does not constitute the use of “medically prescribed controlled substances” within the meaning of CRS § 8-73-108(5)(e)(IX.5). Accordingly, although the medical certification permitting the possession and use of marijuana may insulate claimant from state criminal prosecution, it does not preclude him from being denied unemployment benefits based on a separation from employment for testing positive for marijuana in violation of an employer’s express zero-tolerance drug policy.
Petitioner also contended that the evidence did not establish that he violated employer’s policy, which required claimant to notify employer of his use of marijuana if he was operating any machinery or driving any vehicles for employer, which he was not. Employer’s separate zero-tolerance policy, however, prohibited the presence of any “illegal drugs” in claimant’s system during working hours, regardless of whether he was operating any machinery or driving any vehicles for employer. Although Colorado’s medical marijuana provision may protect claimant from prosecution under Colorado’s criminal laws, the amendment has no bearing on federal laws, under which marijuana remains an illegal substance. Because there was substantial evidence that petitioner had a controlled substance in his system that was not medically prescribed, the Panel did not err in finding that he was not entitled to unemployment benefits.