Author: Beth Zoller, XpertHR Legal Editor
The Colorado Court of Appeals has ruled that even though medical marijuana use is legal in the state, employers may still terminate employees who fail a drug test due to off-duty use of medicinal marijuana. See Coats v. Dish Network, LLC, +2013 COA 62 (2013). In Coats, a quadriplegic licensed in Colorado to use marijuana for medicinal purposes sued his former employer, claiming he was unlawfully terminated because he failed a drug test indicating that he had used marijuana, even though his use of the drug occurred off duty and off the employer's premises. The employee claimed his termination violated a Colorado law prohibiting employers from terminating employees for engaging in lawful activities off the employer's premises during nonworking hours.
The court affirmed the lower court's ruling and dismissed Coats' claim, holding that despite the fact that Colorado law permits the medicinal use of marijuana, employers are permitted to terminate employees for failing a drug test even if the marijuana is used off duty and for medical purposes. The court reasoned that such individuals are not protected by Colorado's lawful off-duty activities statute because to be considered lawful, the conduct must be legal under both federal and state law and marijuana use remains illegal under federal law.
Despite this ruling, Colorado employers should still proceed cautiously when managing employees with disabilities who use marijuana for medicinal purposes. An employer that requires employees to take a drug test should make sure that it has a written policy that is well-publicized and provided to all employees. In addition, the policy should be applied equally to all employees.
Drug testing can be critical to minimizing employer liability, especially if an employer has employees working in safety sensitive positions or positions of public safety. It can also minimize the risk of inappropriate conduct that may lead to a discrimination or harassment claim.