May 20, 2019

Enforcing Drug-Free Workplace Policies In Light of Colorado’s Legalization of Marijuana Use

Johnson_JeffBy Jeffrey T. Johnson

Does an employer’s drug-free workplace policy trump an employee’s use of medical marijuana to treat disabling medical conditions? Yes, according to a recent decision by a Colorado federal judge. In Curry v. MillerCoors, Inc., Judge John Kane rejected a terminated employee’s claim that his employer discriminated against him on the basis of his disability when it discharged him for testing positive for marijuana. Curry v. MillerCoors, Inc., No. 12-cv-02471 (D. Colo. Aug. 21, 2013).

Discharging Employee for Positive Drug Test Not Disability Discrimination

Paul Curry asserted that he suffered from hepatitis C, osteoarthritis and pain. He obtained a medical marijuana license from the State of Colorado to manage the symptoms of his disabling medical conditions. He claimed that he never used marijuana on his employer’s premises and was never under the influence of marijuana at work. He sued after his employer fired him for testing positive for marijuana in violation of the company’s written drug policy. He alleged, among other things, that his termination constituted disability discrimination under C.R.S. § 24-34-402(1)(a).

Despite Curry’s claim that he used marijuana legally to treat his medical conditions, the court found that it was lawful for the company to terminate him under its drug-free workplace policy. Judge Kane wrote “. . . a positive test for marijuana, whether from medical or any other use, is a legitimate basis for discharge under Colorado law.” Moreover, he stated that “anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct.” The court concluded that MillerCoors’s enforcement of its drug-free workplace policy was a lawful basis for its decision to fire Curry.

No Violation of Colorado’s Lawful Activities Statute

Curry also asserted that his termination violated Colorado’s lawful activities statute, C.R.S. § 24-34-402.5(1). The statute prohibits employers from terminating an employee due to the employee engaging in a lawful activity off-duty and off the employer’s premises. The court found no violation, relying on the recent Colorado Court of Appeals decision in Coats v. Dish Network LLC, which held that because marijuana use remains illegal under federal law, an employee’s use of medical marijuana is not a “lawful activity” under the state lawful activities statute. In the Curry case, the court concluded that under established Colorado law, discharging an employee who tests positive for marijuana in violation of an employer’s drug-free workplace policy is lawful, “regardless of whether the employee consumed marijuana on a medical recommendation, at home or off work.”

Medical vs. Recreational Marijuana Use – Does it Matter?

The Curry and Coats decisions both addressed the termination of an employee who used marijuana for medical purposes within the limits of a state-issued medical marijuana license. With the passage of Amendment 64 last November legalizing the adult use and possession of small amounts of marijuana, the next question is whether an employee’s use of marijuana for recreational purposes will be treated similarly by the courts. Based on the broad, sweeping language used by the Colorado Court of Appeals in Coats and the U.S. District Court for the District of Colorado in Curry, the answer is yes. Both courts expansively upheld employer terminations of employees who tested positive for marijuana in violation of company drug policies, suggesting that their reasoning is not limited to the use of medical marijuana. It may take some time for a recreational marijuana termination case to reach the courts so we may not know definitively for a few years. In addition, either or both of these cases may be reversed on appeal. Absent that, however, all indications point to the same result for an employee discharge due to any positive drug test, regardless of whether the employee used marijuana for medical or recreational purposes.

Employers Should Strengthen, Communicate and Enforce Their Drug-Free Workplace Policies

Employers should review their drug testing and/or drug-free workplace policies to ensure that the policies apply to all controlled substances, whether illegal under state or federal law. Policies should clearly indicate that a positive drug test may result in termination of employment, regardless of whether the employee appears to be “under the influence” at work.  Employers then should communicate their drug-free workplace policies to their employees and enforce the policies in a consistent and uniform manner. Under these recent court decisions, terminating an employee who violates a written company drug-free policy will be lawful, even when the employee used marijuana legally under Colorado law.

Learn more about how new laws and rulings in Colorado and elsewhere will affect businesses large and small. From marijuana and social media to credit reports and arbitration agreements, employers need to adapt their policies to stay compliant and minimize liability. Experienced labor and employment lawyers Jeffrey T. Johnson, Esq., of Holland & Hart LLP and Todd J. McNamara, Esq., of McNamara Roseman & Kazmierski LLC will present “Advising Your Business Client on Employment Law – Recent Developments,” at CBA-CLE’s Business Law Institute on October 16, 2013. To register for the Business Law Institute, click here or call (303) 860-0608.

With more than three decades of experience, Jeffrey T. Johnson counsels employers on virtually every area of labor and employment law, including employment discrimination, wrongful discharge, wage and hour, WARN, employee policies, discipline, National Labor Relations Act matters, non-compete and non-disclosure agreements and employee safety and health.  When litigation arises, he serves as a battle-tested, effective advocate for his clients in federal and state courts and agencies as well as in arbitration.  Mr. Johnson is a Fellow of the College of Labor and Employment Lawyers and is recognized as a top labor and employment lawyer by Chambers USA, Best Lawyers in America, Colorado Super Lawyers, and Who’s Who Legal USA. He is also an arbitrator for the American Arbitration Association, Employment Law Panel (Denver).

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

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