Dec 6

Medical Marijuana

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An employee that uses medical marijuana can be lawfully terminated if the employee’s marijuana use violates the employer’s drug-free workplace policy. In Curry v. MillerCoors, Inc., the Court rejected the employee’s claim that his employer discriminated against him on the basis of his disability when it discharged him for testing positive for marijuana. Curry v. MillerCoors, Inc., No. 12-cv-02471 (D. Colo. Aug. 21, 2013). The Court held, in effect, that an employer can lawfully terminate an employee who tests positive on a drug test, provided that testing positive violates the employer’s workplace policy on drugs.

Paul Curry obtained a medical marijuana license to treat symptoms from hepatitis C and osteoarthritis. He alleged that he never used marijuana on his employer’s premises and was never under the influence of marijuana at work. He sued after his employer fired him for testing positive for marijuana in violation of the company’s written drug policy. He alleged, among other things, that his termination constituted disability discrimination under C.R.S. § 24-34-402(1)(a).

Despite Curry’s claim that he used marijuana legally to treat his medical conditions, the court found that it was lawful for the company to terminate him under its drug-free workplace policy. The Court stated that “anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct.” The court concluded that MillerCoors’s enforcement of its drug-free workplace policy was a lawful basis for its decision to fire Curry.

Termination Did Not Violate Colorado’s Lawful Activities Statute

Curry also asserted that his termination violated Colorado’s lawful activities statute, C.R.S. § 24-34-402.5(1). The statute prohibits employers from terminating an employee due to the employee engaging in a lawful activity off-duty and off the employer’s premises. The court found no violation, relying on the recent Colorado Court of Appeals decision in Coats v. Dish Network LLC, which held that because marijuana use remains illegal under federal law, an employee’s use of medical marijuana is not a “lawful activity” under the state lawful activities statute. In the Curry case, the court concluded that under established Colorado law, discharging an employee who tests positive for marijuana in violation of an employer’s drug-free workplace policy is lawful, “regardless of whether the employee consumed marijuana on a medical recommendation, at home or off work.”

Medical vs. Recreational Marijuana Use

The Curry and Coats decisions both addressed the termination of an employee who used marijuana for medical purposes within the limits of a state-issued medical marijuana license. However, it is all but certain that an employee’s use of recreational marijuana will be treated the same as medical marijuana use. The current legal landscape in Colorado is that employers can lawfully terminate employees who test positive for marijuana in violation of a company’s drug policy.

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Denver Lawyer Gregory A. Hall has represented injured persons since 1995 in the following areas: personal injury, employment, civil rights, wage and hour, insurance bad faith, OPM disability retirement, federal workers’ compensation, FLSA, FELA and business litigation.

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