Medical Marijuana User Can Be Fired, Rules Colorado Court

Jun 17 2015 - Workplace Policies - HRWatchdog

The Colorado Supreme Court has ruled that an employer can still fire an employee for a positive marijuana drug test, even though state law permits the medical and recreational use of marijuana.

In 2010, an employee was terminated after failing a company drug test, even though he had a medical marijuana prescription.

The employee sued, arguing that he couldn’t be fired for engaging in a lawful off-duty activity. The Colorado court disagreed and upheld the termination, ruling that, since medical marijuana use is still illegal under federal law, there was no protection for the employee.

According to the court, in order for an off-duty activity to be protected, it must be lawful under both state and federal law. Employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.

Under the federal law, “[t]here is no exception for marijuana use for medicinal purposes, or for marijuana use conducted in accordance with state law,” the court wrote.

What’s the rule in California? California employers have the right to enforce a drug-free workplace policy, even though California law allows the use of medical marijuana. In a 2008 ruling in Ross v. RagingWire Telecommunications, Inc., the California Supreme Court upheld the termination of an employee for testing positive for marijuana use – despite the employee’s medical marijuana prescription.

Like the Colorado court, the California Supreme Court found that medical marijuana does not have the same legal status as other prescription drugs because it is still illegal under federal law.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

HRCalifornia members can read more about drug testing using our How To: Oversee Pre-Employment Drug Testing in the HR Library. Not a member? See how HRCalifornia can help you.

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