Guest Author: Lisa A. Baiocchi, Esq.
Pautsch Spognardi & Baiocchi Legal Group LLP
Last week Monday, in a 6-0 decision, the Colorado Supreme Court affirmed the lower courts’ rulings that employers (in Colorado) do not violate the law when terminating an employee who uses medical marijuana, off duty, and then tests positive under the employer’s “zero tolerance drug policy.” With the lower courts’ decisions upheld, Colorado became the first state to tackle this issue, and most certainly it will have an influence on future cases across the nation in this area.
By way of some background, Colorado has allowed the use of medical marijuana, in some form, since initiating a constitutional amendment in 2000 legalizing the use of medical marijuana for medical purposes; and then, by building upon that constitutional amendment by adding a commercial element in 2010 with the legislature passing the Colorado Medical Marijuana Code. Additionally, the state of Colorado, like many states, has a “Lawful Off Duty Activities” statute which generally protects employees from being fired simply because they engage in “lawful” off duty activities.
The central legal principle in this case was whether the use of medical marijuana, off duty, by a medical marijuana card holder (all legal under Colorado state law) was a “lawful” activity under the “Lawful Off Duty Activities” statute of Colorado. If so, the former employee could not be fired simply because his use of medical marijuana violated the employer’s “zero tolerance drug policy.” Sounds simple right? It’s all legal under Colorado law and therefore the employee should be protected from being fired under the employer’s “zero tolerance drug policy.” But the Trial Court and Court of Appeals in Colorado sided with the employer.
How could the lower Courts side with the employer if this is all legal in the state of Colorado? Remember that the use of marijuana, for medicinal purposes or otherwise, remains illegal under federal law, specifically the Federal Controlled Substances Act. Therefore, the Colorado Supreme Court had to decide if the lower Courts correctly determined that the definition of “lawful” under Colorado’s “Lawful Off Duty Activities” statute required “obedience” of all laws, including federal law, in order for this activity to be protected by state law.
The Colorado Supreme Court decided that:
- “Colorado’s ‘lawful activities statute,’ the term ‘lawful’ refers only to those activities that are lawful under both state and federal law.”
And the Court further noted that:
- “Nothing in the language of the statute limits the term ‘lawful’ to state law. Instead, the term is used in its general, unrestricted sense, indicating that a ‘lawful’ activity is that which complies with applicable ‘law,’ including state and federal law.”
In a nut shell, the Colorado Supreme Court affirmed that the lower Courts correctly determined that the definition of “lawful” even under a state statute does indeed require that the activity be lawful at all levels, including the federal level. Employers in Colorado can now be assured that they may uphold their “zero tolerance drug policies” in the face of an employee failing a drug test due to even off duty use of medical marijuana.
What does this mean for other states that also protect either off duty lawful activities or use of lawful products? Well of course it continues to remain unclear, but arguably not as uncertain as it may have been prior to this case being decided. This case certainly will be cited by employers in other states as a persuasive argument for upholding their “zero tolerance drug polices” when medical marijuana card holders violate similar policies under a similar situation.
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