Posted on 06/16/2015 at 03:57 PM by Melissa Schilling
Co-Authored with Russell L. Sampson and Jill R. Jensen-Welch
For years, employers have struggled with the implications of marijuana in the workplace as more states legalize the use of medical marijuana. Twenty-three states and the District of Columbia now allow medical marijuana use with a doctor's prescription; however, the protections of these state laws differ significantly. For instance, the laws in three states Arizona, Delaware and Minnesota attempt to safeguard employees who use medical marijuana lawfully by expressly prohibit[ing] employers from disciplining an employee for a positive marijuana test if that employee is a qualified patient. On the other hand, many other states allow employers to implement zero-tolerance drug policies. To add to the confusion, marijuana regardless of its use, and regardless of state law is still deemed unlawful under federal law. A recent decision from the Colorado Supreme Court provides clarity for Colorado employers about their rights to discipline and terminate employees who violate their drug policies. On June 15, 2015, the Colorado Supreme Court, by a 6-0 vote, ruled that businesses can fire employees for the use of medical marijuana even if its off-duty. Although Colorado law permits the use of medical marijuana, the court ruled that the employer was within its rights to fire the employee because marijuana remains illegal under federal law. The case involved a quadriplegic who was fired by Dish Network in 2010 after he failed a company drug test for marijuana. The employee had a doctors authorization to smoke medical marijuana, which has been legal in Colorado since 2000. According to the employee, he never used the drug and was never under the influence at work. Nonetheless, Dish terminated the employee pursuant to its zero-tolerance drug policy after the employee tested positive for marijuana during a random drug test. In Colorado, it is considered discriminatory for an employer to terminate the employment of any employee due to that employees engaging in any lawful activity off the premises of the employer during nonworking hours. In this case, the employee argued that Dish violated this statute by firing him for using medical marijuana after work, because he was acting in accordance with Colorado law. The Court, however, disagreed, finding that despite the state law, the employees marijuana use cannot be considered lawful because it violates federal law. Take Aways: This case is a good reminder that employers can continue to determine their own workplace drug policies. While this case applies only to Colorado, it will likely have a broader impact on other states moving to legalize marijuana for either medical or recreational use. In fact, similar cases in California, Montana, Oregon and Washington have also rejected claims by medical marijuana patients who lost their jobs after failing drug tests. In Iowa, other than the possession of an oil form of medical marijuana called cannabidiol, or CBD, the use of medical marijuana has not been legalized. Nonetheless, there has been a growing effort to legalize marijuana for both medical and recreational use. If Iowa ever legalizes the medical use of marijuana, and if marijuana remains illegal under federal law, this decision suggests that private employers will still be able craft their own drug policies and test applicants and employees for marijuana and take action on the basis of confirmed positive test results (One hesitates, however, to declare with certainty what the Iowa Supreme Court will do). As a reminder, Iowa private employers are subject to Iowas strict drug testing statute, which requires employers to maintain a written drug testing policy if it chooses to drug test its employees.
If you have any questions regarding the impact of marijuana use in the workplace recreational or medical please contact Melissa Schilling.
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