In recent years, marijuana legalization has gained momentum throughout the country. Currently, twenty-three states and the District of Columbia have some form of laws legalizing the use of marijuana for medical purposes; four states and the District of Columbia have also legalized possession of marijuana for recreational purposes. However, federal law still prohibits the use of marijuana for any purpose. As the laws have changed throughout the states, many employers have been left wondering whether their drug-free workplace policies and drug-testing rules are still valid and whether employees may be terminated for marijuana use when such use may have been legal under the applicable state law.
Recently, the Colorado courts were faced with precisely this issue. On Monday, June 15, 2015, the Supreme Court of Colorado issued its opinion in Coats v. Dish Network, 2015 CO 44, No. 13SC394. Under Colorado law, marijuana use for both recreational and medicinal purposes is legal. Brandon Coats held a state-issued license to use medical marijuana to treat painful muscle spasms caused by a serious medical condition. However, Coats’ employer, Dish Network, had a company drug policy prohibiting marijuana use and subjected its employees to random drug testing. During a random drug test, Coats tested positive and was terminated pursuant to Dish Network’s policy. Coats then filed a wrongful termination claim pursuant to Colorado law which prohibits employers from discharging employees based on lawful activities occurring during nonworking hours and off the employers’ premises. In a controversial opinion, the Court sided with Dish Network, holding that marijuana use that is unlawful under federal law is not a “lawful” activity and that therefore Coats’ discharge was not wrongful.
The issues present in the Coats case only begin to illustrate the legal minefield that employers must navigate when dealing with legal marijuana use by employees. While Colorado employers now have firm guidance to follow, there are a number of factors present in the Coats case that could cause another state to rule differently. Coats had a state license to use medical marijuana and was using medical marijuana for a serious medical condition that would be covered by both the Family and Medical Leave Act (the “FMLA”) and the Americans with Disabilities Act (the “ADA”). These statutes were not addressed in the decision, leaving open the question of whether employers are required to make exceptions to company policies prohibiting use of marijuana during non-work hours for individuals with disabilities pursuant to the ADA. Are employers required to permit individuals to use FMLA leave to use medical marijuana for a serious medical condition? Do state-specific leave and disabilities laws provide different protections? Unfortunately, given the rapidly changing nature of the law, the unique characteristics of every case and the differences in local law, employers should be careful prior to terminating an employee for legal marijuana use and make sure that such termination is consistent with the current state of the law in their jurisdiction.
ABOUT GREGORY CURREY
Gregory Currey is an experienced and efficient litigator who focuses his practice on Labor and Employment Law and Defense Litigation. He represents employers in State and Federal employment litigation, focusing on all aspects of employee relations, including compliance with Title VII, the ADA, FMLA, FLSA, immigration issues involving I-9s, the E-verify program and H-1B visas, ERISA, retiree health benefits and the NLRA. In addition to handling employment litigation, Mr. .Currey represents companies and individuals in general litigation, with extensive experience in construction litigation. In addition to his litigation work, Mr. Currey counsels businesses and organizations to ensure compliance with State and Federal employment laws, reviews and drafts policies for employee handbooks and leads employee and management training programs.
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