Colorado became the first state to legalize the use of recreational cannabis in 2012 with the passage of Amendment 64. The law aims to regulate marijuana in ways that are similar to the regulation of alcohol. It permits adults 21 and older to possess up to one ounce of marijuana at any time, give up to one ounce of marijuana to other adults 21 and older as a gift, grow up to 6 marijuana plants in a locked space, and legally possess all the marijuana from the plants they grow.
Yet, unlike alcohol, employers may ban employees from using marijuana by implementing drug-free policies. Since marijuana is still banned federally, Colorado law allows employers to impose prohibitions on it, despite it being legal to consume and possess it. Employers may fire employees who smoke cannabis on or off-duty if their drug tests return a positive result for marijuana use.
Many employees in Colorado are surprised to learn they can lose their jobs over a failed drug test that reveals marijuana use. Yet, nothing in the law affects the ability of employers to enact drug policies that restrict the use of any controlled substance, including marijuana. Since these tests cannot pinpoint when employees ingested marijuana, a person can be fired for producing a sample that tests positive regardless if they never smoked during work hours.
An employee who uses marijuana over the weekend and is then tested the next work week may also violate their employer’s drug policies since metabolites from marijuana can stay in the body for several weeks. Many employees see this as a double standard since they can’t be fired for drinking alcohol — a substance many marijuana users claim is more dangerous than marijuana — outside of work hours, unless their alcoholism negatively impacted their job performance.
Many employers are choosing not to test employees for marijuana use because the tests won’t be able to discern workers who use marijuana off-duty and those who might use it during work hours. Employers in certain industries, such as retailers, restaurants, hotels, and casinos, are less likely to conduct drug tests because they’re already experiencing challenges filling positions.
Nonetheless, the Colorado Supreme Court decided in Coats vs. Dish Network that employers may prohibit the use of marijuana among employees, and may continue to discipline and terminate employees who test positive for the drug despite state law permitting the recreational and medical use of marijuana.
In Coats v. Dish Network, a customer service representative for Dish Network failed a random drug test. The company proceeded to fire him under its zero-tolerance drug policy. The employee filed a wrongful termination lawsuit claiming that his firing violated Colorado’s “lawful off-duty activities” statute. This law prohibits employers from discriminating against or firing workers who engage in legal conduct in their free time.
The employee argued that his use of medical marijuana was lawful under state law, and thus his termination violated the statute. The Colorado Court of Appeals rejected his claim, ruling that “marijuana use of any kind” is still federally prohibited, and therefore, use is not considered “lawful” under the off-duty conduct statute. The Colorado Supreme Court sided with this ruling.
Attorney Nathan Davidovich of The Davidovich Law Firm LLC has more than 55 years of experience helping employers in Colorado draft strict workplace policies that help maximize the performance of their employees. When you need to create a strict drug-free workplace policy, you can work with Nathan to ensure your policy is clear, concise, and enforceable.
Call Nathan at (303) 825-5529 or complete our contact form for a consultation.