Are Colorado Employers Required to Accommodate the Medical Use of Marijuana by Their Employees?

Recently, numerous medical marijuana dispensaries, with clever monikers such as "Dr. Reefer," "Marijane," and "The Grasshopper," have opened in the Denver Metropolitan area.  These dispensaries are legal as a result of the enactment of the Medical Use of Marijuana for Persons Suffering from Debilitating Medical Conditions constitutional amendment (hereinafter, the "Medical Marijuana Amendment").  The Medical Marijuana Amendment gives patients using prescribed marijuana to treat a chronic debilitating disease or medical condition an affirmative defense to Colorado's criminal laws. 

Colorado employers should note that the legal landscape is a little complicated with respect to their right to address an employee's use of medical marijuana. While the Medical Marijuana Amendment specifically provides, in part, that "Nothing in this section shall require any employer to accommodate the medical use of marijuana in a workplace" it may very well conflict with Colorado's Unlawful Prohibition of Legal Activities as a Condition of Employment statute ("Lawful Off-Duty Activities Statute"), C.R.S. § 24-34-402.5.  This Statute prevents an employer from terminating the employment of an employee due to the employee's engaging in any lawful activity off the premises of the employer during nonworking hours.  The Statute, however, creates exceptions when the termination decision:  (1) relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees, rather than to all employees of the employer; (2) or it is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of a conflict of interest.

So how might Colorado employers walk the line between their rights under the Medical Marijuana Amendment and the Lawful Off-Duty Activities Statute? While this issue has not been litigated in Colorado, courts in California and Montana have addressed the use of medical marijuana in the workplace.

In Ross v. Ragingwire Telecommunications, Inc., 174 P.3d 200 (CA 2008), the California Supreme Court decided whether an employer had to make a reasonable accommodation by permitting an employee's medical use of marijuana in the workplace.  The plaintiff, Ross, suffered from strain and muscle spasms as a result of injuries he sustained in the Air Force.  In 1999, after failing to obtain relief from pain through other medications, the plaintiff began to use marijuana on his physician's recommendation pursuant to California's Compassionate Use Act.  On September 10, 2001, Ragingwire offered the plaintiff a job as lead systems administrator and required the plaintiff to take a drug test.  The plaintiff took the drug test and tested positive for THC, a chemical found in marijuana.  The plaintiff gave Ragingwire a copy of his physician's recommendation for marijuana and explained to the Ragingwire's human resources director that he used marijuana for medical purposes to relieve his chronic back pain.  Ragingwire's representative told the plaintiff that they would call his physician, verify the recommendation, and advise him of Ragingwire's decision regarding his employment.  On September 21, Ragingwire's board of directors met to discuss the matter and, on September 25, Ragingwire's CEO informed the plaintiff that he was being fired because of his marijuana use.  The plaintiff claimed that his disability and use of marijuana to treat pain did not affect his ability to do the essential functions of his job.  He had worked in the same field since he began to use marijuana and had performed satisfactorily. He had not received complaints about his job performance.

In his complaint, the plaintiff alleged that Ragingwire violated California's Fair Employment and Housing Act ("FEHA") by terminating because of, and failing to make a reasonable accommodation for, his disability.  The plaintiff also claimed that Ragingwire wrongfully terminated his employment in violation of public policy.  In affirming the Court of Appeals decision, the California Supreme Court concluded that the plaintiff could not state a cause of action against Ragingwire under the FEHA based on the company's refusal to accommodate his use of medical marijuana.  In reaching this conclusion, the court held that no state law can completely legalize marijuana for medical purposes because the drug remains illegal under federal law, even for medical uses.  Furthermore, the FEHA does not require employers to accommodate the use of illegal drugs.  The court went on to hold that the only "right" to obtain and use marijuana under the Compassionate Use Act is the right of the patient, or the patient's primary caregiver, to possess or cultivate marijuana for personal medical purposes upon the recommendation of the patient's physician.  The Compassionate Use Act is an affirmative defense to California's criminal marijuana law.  Finally, the court ruled that the Compassionate Use Act did not articulate any policy concerning marijuana in the employment context, let alone a fundamental public policy requiring employers to accommodate medical marijuana uses.

In the Montana case of Johnson v. Columbia Falls Aluminum Company, LLC, 2009 Mont. Lexis 120 (Mont., Mar. 31, 2009), the plaintiff began using medical marijuana under the supervision of a physician a year and a half before his termination.  The plaintiff used his own funds to purchase medical marijuana and limited his treatment to after-work hours.  When the plaintiff tested positive for marijuana, his employer, Columbia Falls Aluminum Company, LLC ("CFAC") suspended him.  Shortly thereafter, CFAC gave the plaintiff a "last chance" agreement outlining the conditions upon which he could return to work including, in particular, that he test non-positive for marijuana.  The plaintiff did not sign this agreement, and  subsequently, CFAC terminated him.  In his lawsuit, the plaintiff claimed that CFAC violated the Montana Human Rights Act ("MHRA") and the ADA when it failed to accommodate his medical marijuana use by waiving terms of its drug testing policy.  In rejecting this argument, the Montana Supreme Court held that Montana's Medical Marijuana Act ("MMA") clearly provides that an employer is not required to accommodate an employee's use of medical marijuana.  MCA § 50-46-205(2)(b).  The MMA is a decriminalization statute that protects qualifying patients, caregivers and physicians from criminal and civil penalties for using, assisting the use of, or recommending the use of medical marijuana.  The MMA specifically provides that it cannot be construed to require employers to accommodate the medical use of marijuana in a workplace.  Thus, the court concluded that failure to accommodate use of medical marijuana does not violate the MHRA or the ADA, because an employer is not required to accommodate an employee's use of marijuana.

Similarly, Colorado's Medical Marijuana Amendment does not require an employer to accommodate the medical use of marijuana in any workplace.  However, an employee could claim that they only use medical marijuana at home, when they are not working.  Thus, if the employer disciplines the employee for marijuana use, the employee could claim that the employer is violating Colorado's Lawful Off Duty Activities Statute, which was not at issue in either Ross or Johnson.  To minimize their risk of being caught up in this conundrum, Colorado employers should ensure that their drug-free workplace policies conform to the exceptions under Colorado's Lawful Off-Duty Activities Statute (discussed above).  Significantly, the ADA does not require an employer to accommodate the illegal use of drugs or alcohol.  An employer can prohibit employees from being intoxicated by illegal drugs, alcohol, and even prescription drugs in the workplace.

Its also possible that an employer could avoid this conundrum altogether by indicating in their drug-free workplace policy that all drugs that are illegal under federal and state law are prohibited.  As previously discussed, under federal law, marijuana use and possession thereof, is illegal and cannot be legalized by state statute.

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

© 2010 Sherman & Howard L.L.C.                                                   January 5, 2010