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Colorado Voters Passed Amendment 64

On November 6, 2012, Colorado voters passed Amendment 64 which allows for the recreational use of marijuana, thereby expanding the state's lax marijuana policies following the legalization of medical marijuana use in 2000. The newest Amendment, which was signed into law by Governor Hickenlooper on January 6, 2013, allows for adults over 21 to possess up to an ounce of marijuana and grow as many as six (6) plants in the privacy of their homes.

However the Amendment provides a few exceptions to that use, similar to alcoholic beverages, a person may not operate a motor vehicle under the influence of marijuana. Also, employers can restrict the use of marijuana by their employees. Specifically, Section 6(a) states, "Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession...of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees." The question remains if employers can drug test their employees and terminate them for using marijuana while off duty with no indications of on the job impairment.

A number of terminated employees are beginning to ask the Colorado Courts that very question. In filing the cases, attorneys for terminated employees have turned to an employment discrimination provision of the Colorado Civil Rights Act (CCRA); the Colorado Lawful Off-duty activities statute. This statute generally prohibits discharging an employee for engaging in any lawful activity off the premises of the employer during nonworking hours. However, marijuana usage is still federally illegal. The Federal Drug Enforcement Agency lists marijuana as a Schedule I Controlled Substance with, "currently no accepted medical use in the United States." The question remains, therefore, does the "lawful" requirement of the off-duty statute refer only to State law or is it inclusive of federal law as well?

On April 25, 2013, the Colorado Court of Appeals in a 2-1 decision on Coats v. Dish Network LLC., upheld an employee termination after the employee tested positive for marijuana stating that off-the-job use of medical marijuana is not "lawful activity." The case involved Brandon Coats, a telephone operator for Dish Network who was paralyzed in a car crash as a teenager and has been a medical marijuana patient in Colorado since 2009. Mr. Coats' employer never claimed he was impaired on the job but fired him for a positive result on a company drug test in 2010.

The Court disagreed with Mr. Coats' contention that for the purposes of the statue, the term lawful activity refers only to state, not federal law and concluded that "for an activity to be lawful in Colorado, it must be permitted by, and not contrary to, both state and federal law." Similarly, the Washington state Supreme Court also has found that workers can be fired for using marijuana, even though it is authorized by the state's medical marijuana laws. Judge Webb provided the dissent in this case arguing the statutory intent was to protect employees from their employers and not to empower employers to discharge based on "unlawful" conduct. Judge Webb interprets "lawful" to mean measured soley by Colorado law. Mr. Coats' case is headed for the Colorado Supreme Court.

As it is currently being interpreted, Colorado's Amendment 64 does not protect users from being terminated. Employers are allowed to drug test and fire employees for using marijuana even off the job. Potential users are warned to be familiar with their employers' drug policies.

If you have a question about a termination for a lawful off-duty activity or termination for marijuana use, contact a lawyer who can best assess your potential claims.

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