In an article in the Denver Post of December 15, 2015, entitled “HR managers tightening drug policies since legalization of pot”, it is pointed out that a number of employers are reconsidering their substance abuse policy. Many employers have policies in place that prohibit drug use or being under the influence of alcohol, either during work or while on the employer’s premises. In Colorado, where recreational use of marijuana is legal, it was thought that the employer had no right to control the non-work activities of its employees, as long as the employee was not impaired due to alcohol or drug use while at work. That was based on a Colorado Statute, C.R.S. 24-34-402.5, which provides that it shall be a discriminatory practice to terminate an employee for lawful activities off the premises of the employer, unless the activity is related to the employment activities and responisbilities of the employee.
The Colorado Supreme Court, on June 15, 2015, in the case of Coats v. Dish Network, LLC, visited this issue in a case where the employee, Coats, was fired due to his use, at home during non-working hours of medical marijuana. Coats is a quadriplegic who has had a Colorado license to use medical marijuana to treat his pain. There was no allegation that the medical marijuana was used at work, and it was used in accordance with Colorado state law; however, Coats tested positive for THC, a component of medical marijuana, during a random drug test, in accordance with the drug policies of the employer. The Court in analyzing these facts against the “lawful activities” statute, held that since the Federal Controlled Substances Act makes even medicinal use of marijuana illegal, the termination of Coats in this case was proper, as the statute does not limit discrimination to only those activities which are lawful under state law, but it must be lawful under Federal law as well.
Based on this decision I believe that an employer should still tread carefully in drafting a substance abuse policy. Consideration should be given to what the essential functions of an employee’s job are, and whether, if the employee is disabled, in accordance with the Americans with Disability Act (ADA), he can still fulfill the essential functions of his job. It can be argued that if the disabled person is able to fulfill the essential functions of his job, despite the legal use of drugs according to state law, which would otherwise be illegal under Federal law,then it would be discrimination, in violation of the ADA to fire him. That argument is strengthened by the very wording of the amendments to the ADA, contained in the ADA Amendments Act of 2008 (ADAA). 42 USC 12111(6), states, regarding the illegal use of drugs, unlawful under the Controlled Substances Act, that such use “does not include the use of a drug taken under the supervision by a licensed health care professional…”
Given the possible conflicts facing an employer in drafting a substance abuse policy, the employer must take various situations into account and it is recommended that he consult a qualified employment attorney to assist in the drafting.
Nathan Davidovich practices employment law in the state of Colorado, and he is available for consultation on any matters arising in the State of Colorado. Please contact Nathan Davidovich by email or by telephone, to schedule a consultation.
The information contained in this article is not intended to provide legal advice as to any particular situation, but rather is a general outline of Unemployment Insurance compensation law in Colorado. For specific advice on your fact situation please consult an experienced attorney.