Russell Hebets Oct. 27, 2012

Marijuana and Employment

Marijuana has become a popular blog topic for us at Hebets & McCallin, mostly because the passage of Amendment 64 has caused a multitude of legal issues surrounding marijuana to sprout up like a, well, weed.

Today’s Denver Post reported an article about a marijuana case currently pending in the Colorado Court of Appeals. Unlike most of the cases we cover in this blog however, it is not a criminal question being raised, but rather an employment law question. It is this: Can a private employer terminate an employee for testing positive for pot in the wake of the passage of Amendment 64? The basic facts of the case involve a man who was terminated from his job as a phone operator for Dish Network for testing positive for marijuana per company policy. To further complicate things, he is a current medical-marijuana patient who was not found to be impaired while he was working.

While this is specifically a medical marijuana case, it is undoubtedly a prelude to future litigation in Colorado now that small amounts of marijuana may be possessed pursuant to Amendment 64. So, can you be fired for engaging in otherwise legal activity off the clock? According to the Colorado Lawful Off-Duty Activities Statute, C.R.S. section 24-34-402.5, the answer is no. This law was passed in 1990 to prevent employers from discriminating against cigarette smokers, but has been expanded to protect other groups as well. So far it seems as though our cable guy has a good case, right?

Not so fast. As we are seeing with all things marijuana, the federal government still prohibits possession and consumption of marijuana across the board. So even though a Colorado constitutional amendment has decriminalized weed and we have a state statute that prevents discrimination based on off the clock legal activity, because marijuana is still illegal in the eye of Uncle Sam, it may not be a protected activity. We will be watching the Court of Appeals very carefully on this one.

So far we have been talking about a private employment situation. We haven’t even touched on whether or not a public employee will be able to smoke marijuana after hours. If you are a teacher in a public school, are you allowed to smoke marijuana at home? Can a police agency require its officers to refrain from smoking marijuana? These are all questions with no answer at the moment, but suffice it to say that the previous legal framework for all of these issues since the passage of Amendment 64 have gone up in smoke.