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What Should I Do If I Get Terminated for Marijuana Use In Colorado?

Based on the most recent cases by Colorado Courts and Courts throughout the country, the easy answer is “look for another job”. In a previous blog, entitled “Termination of Employment for Marijuana Use in Colorado”, I discussed a Colorado Supreme Court case, Coats v. Dish Network, LLC that upheld the firing of a quadriplegic employee, with a license to use medical marijuana, for testing positive for marijuana during a random drug test.  The rationale by the Court, as well as by many other courts throughout the country, was that such use, even though lawful by Colorado law, was still unlawful under the Federal Controlled Substances Act. Therefore, it was not unlawful for the employer to fire the employee for marijuana use, even though there was no showing that it affected his work.  In other words, the Federal law took precedence over Colorado law.

In my previous blog, I suggested a possible argument that since the marijuana was prescribed by a licensed health care provider, its use might be considered lawful, under Americans with Disabilities Act (ADA), at 42 USC § 12111(6), regarding the illegal use of drugs, which do “not include the use of a drug taken under the supervision by a licensed health care professional”. While from a reading of the various Colorado court opinions, that argument was not made, most courts rejected that argument. The one exception that I found was in a dissenting opinion by a US Court of Appeals Judge in the 9th Circuit, who said, in the case of James v. City of Costa Mesa, as follows:

The definition of “illegal use of drugs” applies equally to the ADA’s employment provisions. See 42 U.S.C. § 12111(6). That exception, if read as I suggest, would preclude employers from refusing to hire otherwise qualified disabled individuals who use medical marijuana, as long as doing so did not interfere with their ability to carry out their duties safely. The legislative history quoted above suggests that Congress was particularly concerned with that group of individuals, recognizing that disabled individuals who follow their doctors’ advice for dealing with their disability should not be barred from the workplace simply for doing so.

Even though the Judge’s reasoning makes sense, since the majority opinion did not adopt it, one cannot rely on that argument.

However, there is another approach that one might consider when being terminated for testing positive during an employer screening. That is to make a determination as to whether or not, if you are a person with a qualified disability, under the ADA, your termination was not for testing positive for marijuana, but as a pretext for disability discrimination. That requires a careful analysis of the way the testing was done, the questions asked during the exam, and many details of the way the exam was conducted.

The ADA prohibits “disability related inquiries”, such as whether the employee is an individual with a disability or as to the nature or severity of the disability. Asking an employee whether he is taking prescription drugs or medication, or questions seeking information about illnesses, mental conditions, or other impairments an employee has or had in the past, trigger the ADA’s protections.  The issue, as to whether there has been an impermissible disability related inquiry is often a question of contested issues of fact.

On the other hand, asking about or testing for marijuana use, without being geared to determining medical information, and applied, uniformly through a written drug testing policy, will not amount to discrimination.  It makes no difference if you tell your employer that your use of marijuana is a treatment for a medical condition. In the case of Curry v. MillerCoors, Inc.,  a claim was made that the employer discriminated against him by terminating him to prevent his use of medical marijuana. That claim was rejected as the employer was simply enforcing its drug-free workplace policy, which is a lawful basis for a decision to discharge. There was no claim that the employer applied its drug free policy differently or more stringently on Plaintiff.  Had he done so and claimed that the discharge was because of his disability, not the treatment for his disability,  he might have prevailed on a disability claim

Given the many variables facing an employee in determining whether or not his termination violated the discrimination laws, the employee must take various situations into account and it is recommended that he consult a qualified employment attorney to assist in the reaching a proper decision.

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 options dealing with termination for using medical marijuana in Colorado. For specific advice on your fact situation please consult an experienced attorney.