Can Small Businesses Fire Employees Over Medical Marijuana Use?

Date: July 01, 2014

A Colorado Supreme Court decision may set a precedent for other states.

Six months after the first
legal retail sale of marijuana in Colorado, it’s clear employers still hold the
trump card on drug policies in the workplace. That is, even if employees
legally use marijuana off the clock, Colorado state law allows employers to
implement drug policies and fire employees who violate them.

For many business owners,
this isn’t a new issue. Since 1996, 20 states and Washington, D.C., have
enacted laws legalizing medical marijuana use. Businesses in these states can determine
disciplinary measures for employees who violate workplace drug policies by
medical marijuana use. So far, when faced with resulting lawsuits from
employees, courts in California, Oregon, Colorado and Washington have ruled in
favor of employers.

But now, a case headed for
the Colorado Supreme Court may change that.

Colorado’s Lawful Activities Statute Called Into
Question

Brandon Coats, a quadriplegic
man and Colorado medical marijuana patient, was fired from his job as a
telephone operator at Dish Network in 2010 for using marijuana after hours.
Coats challenged his termination, arguing he never used or was under the
influence of marijuana at work. The lawsuit was brought forward under the
state’s Lawful Activities Statute, which prevents employers from firing
employees for engaging in legal activities in off-work hours.

So far, a trial court and the
Colorado Court of Appeals have upheld Coats’ termination, saying the statute
didn’t apply to marijuana use since it’s illegal under federal law. Earlier
this year, however, the Colorado Supreme Court announced it would review Coats’
case, looking at whether the Lawful Activities Statute covers marijuana and
whether the Colorado constitution gives medical marijuana patients a right to marijuana.

Federal Law vs. State Law in Medical Marijuana Cases

NFIB has filed an amicus
brief
in support of Dish Network. “It is NFIB’s position that public safety and
federal law must take priority over state marijuana laws,” says Tony Gagliardi,
NFIB’s Colorado state director. “Should the Court rule in favor of Coats,
Colorado’s employment law and the laws of other states will be thrown into
disarray for years to come.”

Gagliardi hopes the Court
takes into consideration how the ruling could impact Colorado employers, including
many in industries required by law to maintain drug-free workplaces, such as
transportation and government contracting.

If the Court reverses the
lower courts’ rulings, Colorado employers will have to consult with employment
counsel to determine whether they can legally implement drug policies in the
workplace, and how those policies may be enforced going forward, says Karen
Harned, executive director of the NFIB Small Business Legal Center. Future
evaluations of drug policy violations may mean employers have to prove whether
employees’ after-hours marijuana use negatively impacts their job performance in
order to have a case for termination—and the scientific data on marijuana
impairment is so new that it can’t be relied on yet, Harned says.

With the tide turning on
marijuana legalization—recent polling results show that 54 percent of Americans
support it and 75 percent believe it’s inevitable—this case is one to watch.
The decision likely will be issued in the summer or fall of 2014.

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