A Colorado Employers’ Guide to Understanding Medical Marijuana Use

Filed Under (Medical Marijuana) on 09-20-2012

Medical Marijuana Laws, medical pot, marijuana at work

By Ann Toney, JD.

The law is not yet settled in Colorado concerning whether employers can, or cannot, dismiss employees due to their use of medical marijuana at home, on their own time.

Generally, it has been presumed that employers can fire workers for using marijuana, medicinally or not.  And employees generally have not been successful arguing against dismissal by relying on the Americans with Disabilities Act or state disability discrimination statutes.

But in the future, employees may be successful arguing that they can’t be dismissed under a Colorado law saying it’s illegal to fire an employee for engaging in legal acts off premises during non-working hours.  Further, employees may find other legal opportunities to press their case.

Until the answer is definitive, we offer background and general guidance on how to handle the issue.

Some 161,000 Coloradans now legally use medical marijuana with their prescriptions sanctioned by the Colorado Constitution.

But just because the state government smiles on medical marijuana, Colorado employers may not have to.  Specifically, the Colorado Constitution states, “nothing shall require any employer to accommodate the use of medical marijuana in any workplace.”

Clearly, employers are not required to tolerate the use or possession of marijuana in the workplace or during working hours, regardless of whether the use is medicinal.

What is medical marijuana use, and how can an employer detect it?
The problem is the word “use.” It can be difficult to tell whether an employee is “using” marijuana at work. Drug tests can show whether a worker ingested marijuana in the past two to three weeks, but that use could have been during non-working hours.

“Use” is defined as “production, possession, delivery or administration of marijuana or paraphernalia to administer marijuana.” The amendment does not define “use” as merely having evidence of past use.

The big question
Since it’s impossible to tell, via drug tests, whether marijuana was recently ingested at the workplace or off-site, at the worker’s home, the question becomes: can an employer refuse to accommodate the bona fide medical use of marijuana off-duty and outside the workplace by an individual with a disability?

Because Amendment 20 is relatively new in Colorado and case law is evolving, legal arguments are now being made about this issue.

In the meantime…
The least risky course of action for employers is to develop a consistent and clear drugs-in-the-workplace policy and to apply it across-the-board to employees.

For more information about case law regarding medical marijuana in the workplace, see Colorado Medical Marijuana Law, by Ann Toney, JD.