Dazed but Slightly less Confused: Employer's Drug Testing Policy Prevails In Termination Challenge

If you are in one of the 23 (and counting) states, which permits the medically authorized use of marijuana, you need to take note of a Colorado Supreme Court decision issued yesterday. The decision itself is based on the specific language of the Colorado medical marijuana statute, but the decision may nonetheless be an important guide for employers nationwide wrestling with how to enforce drug and drug testing policies in states where the use of marijuana has been legalized.

The employee in question, who held a state-issued license to use medical marijuana, was employed as a customer service representative. In 2010, the employee tested positive during a random drug test at work.  After obtaining the results, the employee informed the company that he was a registered medical marijuana patient and planned to continue using the substance for his condition. The employee was not accused of using marijuana at work; instead, he used it at home, after work, in accordance with his license and Colorado law.  Regardless, the company terminated the employee for violating its drug policy.

Colorado has been at the forefront of the legislation addressing the legal use of marijuana. Further, Colorado's Medical Marijuana Amendment generally prohibits an employer from firing an employee based on "lawful activities" off the premises of the employer during nonworking hours. The employee therefore filed suit in this case claiming that his termination was unlawful — it was based on his lawful use of marijuana off premises and outside of work hours. The case therefore forced the lower courts and, ultimately, the Supreme Court to address an issue  (albeit within the limited context of the Colorado statute) that has plagued employers since the legalization of medical marijuana began to take steam: the interplay between state statutes legalizing medical marijuana, federal law criminalizing marijuana use, and an employer's policy prohibiting the use of illegal drugs. 

The employee in the case argued that the Colorado statute made medical marijuana use "lawful" and, therefore, notwithstanding federal law, that his termination violated state law. The employer moved to dismiss the case, arguing that medical marijuana use is not a "lawful activity" for purposes of the Colorado statute because it is prohibited by federal law. The Supreme Court first determined that the term "lawful" as used in the statute was not restricted in any way and, therefore, the Court could not infer on its own, for example, that "lawful" just meant lawful under state law. Without any clearer statutory language, the Supreme Court proceeded to uphold the dismissal of the case and, more broadly, to conclude that an activity such as medical marijuana use that is unlawful under federal law is not a "lawful activity" under the Colorado Medical Marijuana Amendment.

While this decision is specific to Colorado law, it may also provide a useful guide to employers. If you are in a state that legalizes the use of medical marijuana, check the language of the statute and any use parameters.  Acting in accordance with federal law likely still provides a measure of protection for employer's trying to enforce company drug policies. The federal Controlled Substances Act continues to prohibit the use of medical marijuana and makes the use, possession or manufacture of marijuana a federal criminal offense. Consistent with this approach, on May 26, 2015, the Office of Personnel Management issued guidance for the roughly 4.1 million employees of the federal government and military personnel. The clear message of that guidance is that the U.S. government still considers marijuana an illegal drug and possession or use of it, a crime.  

With questions on this issue, please contact Aimee Delaney or your usual Hinshaw attorney.

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