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The AR Group

Smoking Pot is Legal in Colorado ? How Does That Affect Your Company Drug Policy?

By: Jeanette S. Eirich

As of January 1, 2014, Colorado began selling retail recreational marijuana and the possession of use by adults, age 21 and over, is legal, with certain exceptions.? C.R.S. ? 18-17-406.? How will this law and its implementation affect company drug policies and can employers still take disciplinary action, up to and including termination, against individuals “legally” using marijuana?? The short answer is that properly crafted company drug policies are still enforceable, because marijuana use remains illegal under federal law.? In reaching this conclusion, Colorado law related to the use of medical marijuana and employment drug policies is instructive.

In Coats v. Dish Network, L.L.C., 303 P.3d 147 (Colo.App. 2013), Dish Network terminated Coats after he tested positive for marijuana, in violation of Dish Network’s drug policy.? Coats, a paraplegic, who legally used medical marijuana pursuant his license to do so (and not while on his employer’s property or during work hours) claimed that Dish Network terminated him in violation of Colorado’s Lawful Activities Statute, C.R.S. ? 24-34-402.5.? The statute prohibits an employer, subject to certain exceptions, from discharging an employee for “engaging in any lawful activity off the premises of the employer during nonworking hours.”? The trial court decided that Coats’ medical marijuana use was not “lawful activity” under Colorado law because the medical marijuana amendment did not establish a state constitutional right to state-licensed medical marijuana use, but rather created an affirmative defense from prosecution for such use.? The trial court dismissed Coats’ claim.? The appellate court affirmed the dismissal but on different grounds.

The Court of Appeals reasoned that “because activities conducted in Colorado, including medical marijuana use, are subject to both state and federal law ? for an activity to be “lawful” in Colorado, it must be permitted by, and not contrary to, both state and federal law.”? The Court stated that “while we agree that the general purpose of section 24-34-402.5 is to keep an employer’s proverbial nose out of an employee’s off-site off-hours business ? we can find no legislative intent to extend employment protection to those engaged in activities that violate federal law.”? The Court held that because Coats’ “state-licensed medical marijuana use was, at the time of his termination, subject to and prohibited by federal law, we conclude that it was not ‘lawful activity’ for the purposes of section 24-34-402.5.”

Despite Colorado’s implementation of the legal use of recreational marijuana, marijuana possession and use remains illegal under federal law.? While the current administration has decided not to challenge Colorado’s law and further, has indicated it would not direct law enforcement resources to the personal use and possession of marijuana, federal law still prohibits all possession and use of marijuana.

Therefore, under the Coats decision regarding medical marijuana, the reasonable analogy regarding recreational marijuana use is that employers are generally within their rights to terminate individuals for violating company drug policies.? It is thus critical that employers ensure that current drug policies are appropriate and properly drafted.? Employers should consider having legal counsel review corporate policies.

Smart Tip:? Be aware of the potential for law to develop around this issue, particularly in states, like Colorado, where regulations related to marijuana use are loosening.? At least in Colorado, the Court has not yet addressed the argument that the medical marijuana Amendment created a state constitutional right to medical marijuana use.? So, that remains an open question.? Given the legislative and administrative rules regulating the sale, possession, and use of recreational marijuana, however, the likely answer is that no such right has been created.? Nonetheless, caution is advised and we encourage businesses to seek advice and counsel when sticky issues arise in this context before taking adverse action against an employee.