Employment Litigation Counsel Holli Hartman published “Colorado’s Medical Marijuana Laws Leave Employers in a Cloud of Smoke” in the August issue of ColoradoBiz magazine.
Because the number of medical marijuana users in Colorado is rising exponentially, Hartman’s article suggests that employers’ confusion about the laws regarding the use of medical marijuana is well founded.
In the article, Hartman explains that even though Colorado’s constitution legalizes medical marijuana, federal law still bans it as a controlled substance, leading some employers to modify their policies to continue to ban “federally controlled substances” in the workplace.
Further complicating matters is the constitutional amendment passed by the voters in 2000 that states “Nothing in this section shall require any employer to accommodate the medical use of marijuana in a workplace,” which seems to conflict with Colorado’s legal off-duty activities statute, otherwise known as the “smokers’ rights” act. The law prohibits employers from terminating employees for engaging in legal activities on their own time away from work.
This led Hartman to ask if a medical marijuana card holder smokes pot at home after work, can an employer still terminate him, or not hire him in the first place, if he tests positive on an employment drug test?
The Colorado Court of Appeals and Supreme Court have yet to answer this question, but Hartman suggests employers look at how courts in other states have been deciding the issue.