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How does the Federal Court interpret Colorado Law Regarding Marijuana Testing in the Workplace?

In a previous blog we discussed the case, Coats v. Dish Network, LLC, wherein the Colorado Court of Appeals held that Colorado's Lawful Off-Duty Activities Statute does not prohibit an employer from terminating the employment of an employee for off-the-job use of medical marijuana pursuant to a license issued under Colorado's Medical Marijuana Amendment 64. In that case, Mr. Coats was terminated after he tested positive for marijuana in violation of Dish Network's drug policy. Mr. Coats argued that his marijuana use was "lawful activity" because it was legal under state law. The trial dismissed Mr. Coats' claims, holding that medical marijuana was not a "lawful" activity because it was still federally illegal. The Court of Appeals affirmed the decision. The Colorado Supreme Court granted certiorari in January 2014 and the case is currently pending.

Another medical marijuana case was decided in the Tenth Circuit this year and was the first case in which the Federal Court rejected claims for discrimination and invasion of privacy under Colorado law. Mr. Curry was a seven (7) year employee of MillerCoors who suffered from hepatitis C, osteoarthritis, and pain. He was prescribed a medical marijuana license, used his license under state constitutional and statutory provisions, never used it on company premises, and was never under the influence of the drug at work. However, Mr. Curry tested positive for marijuana in violation of MillerCoors' written drug policy and was terminated.

In Curry v. MillerCoors, Inc., Mr. Curry claimed that his termination was illegal for three (3) reasons. First, Mr. Curry argued that his termination amounted to employment discrimination based on his disability because he selected marijuana as treatment to manage his disabling medical conditions. However, the Court found that Colorado's unemployment security act expressly allows such a termination stating, "[a]n employer shall not be charged for unemployment benefits when it has a previously established written drug policy and terminates an employee as a result of a drug test showing the presences of marijuana in the employee's system." C.R.S. §12-22-303(7). U.S. District Judge John Kane explained, "[a] termination for misconduct is not converted into a termination because of a disability just because the instigating misconduct somehow relates to a disability. Though Mr. Curry may have never used medical marijuana absent his disability, MillerCoors did not unlawfully terminate him because of his disability." (emphasis added).

Mr. Curry also alleged that MillerCoors' requirement that employees inform them of their prescriptions and the physical drug test itself were invasions of his privacy. To establish a claim of an invasion of privacy, Mr. Curry must show that the intrusion was highly offensive to a reasonable person or was for an unwarranted purpose. The Court concluded that the law allows drug testing; the use of a swab is "minimally intrusive" and "is not offensive to a reasonable person." Further, there was no evidence that Mr. Curry disclosed his marijuana usage to MillerCoors so the Court did not rule on whether the policy itself was discriminatory.

Finally, Mr. Curry stated that MillerCoors violated Colorado's statute prohibiting termination based on his "lawful activity off the premises of the employer during nonworking hours." Using the decision in Coats v. Dish Network, stating that the lawful requirement included both state and federal law, the Judge also dismissed this claim.

This decision affirms the employer's power to implement, administer, and apply their drug testing policies and discharge employees who violate them. However, there are potential fact patterns that the Court did not address, such as: 1) if the employer did not have a written policy in place regarding drug testing; 2) if the employer used a more invasive form of drug testing than a saliva swab test; 3) if the employer did not apply drug testing policies consistently; and, 4) if the requirement of divulging medical marijuana prescriptions as a policy was discrimination.

If you have a question about drug testing in employment or termination for marijuana use, contact us at to discuss your legal rights.

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