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Marijuana Is Legal in Colorado but Bosses Can Still Fire You for Off-Duty Use

In spite of legalization, federal law still considers marijuana a controlled substance.

(Photo: morgan/Flickr)

In 2010, medical marijuana user Brandon Coates was fired by his employer for testing positive for the drug during random drug testing. Medical use of the drug had been legal in Colorado since 2000. Even though he was not impaired, and his employer knew he was a medical marijuana patient, it was considered a violation of company policy. Coates, a quadriplegic, had been advised to use marijuana and had been doing so for a year at the time of the drug test and with the company for over three years.

Coates challenged his firing in court. While the law stated that employers were not required to accommodate medical use on the premises, it was not specific about at-home use. His attorney argued that use of the drug fell under Colorado’s lawful activities statute. The law protects employees from discrimination by employers for participating in lawful activities off duty and off premises. Since Coates was not impaired and home use of medical marijuana was legal, he was wrongfully terminated.

The case was brought five years ago, prior to recreational use of marijuana being legalized in Colorado in 2012 and was the first state to do so. Since then regulations have been created for its use, much like the laws governing alcohol use. However, unlike alcohol, trace amounts of THC can remain in the system for several weeks after use. Depending on the sensitivity of the test, both inactive and active amounts can be picked up in the testing.

Many states have legalized medical use of marijuana, and more states are pushing for recreational legalization. In spite of this, federal law still considers marijuana a controlled substance. While there have been attempts by Congress to minimize interference in state laws, as well as signals from the Obama Administration that they wish to switch focus away from marijuana enforcement, there has been no federal legalization of the sale or use drug. This fact is what caused Brandon Coates to lose his case.

Two courts have ruled that the firing was lawful. In June, the Colorado Supreme Court ruled that the “lawful activities statute” applied to activities that were lawful under both state and federal law. Since medical use is not allowed under federal law, there is no protection under the state statute.

Legalization is still a new frontier and the law will take some time to catch up. While Colorado has regulations which prohibit recreational use for those under 21 years of age, schools are reporting an uptick in use. Students can still be suspended and prosecuted. For this reason, the state has ordered schools and prosecutors to report offenses specific to students’ marijuana use in order to determine if there is a significant increase since legalization. This will determine if there needs to be better enforcement.

The new reporting requirement, signed by Gov. John Hickenlooper earlier in June, is also an attempt to see how these offenses are being handled. Even where use has been legalized, there is still the possibility of criminal action in some cases. The goal is to see if there are any trends to the amount of cases that end up with law enforcement and to have schools handle more of the cases themselves.

The Colorado Supreme Court ruling not only highlights the inconsistency with existing state law, but also the urgency for consistency between federal and state laws. Even as the Obama Administration has made some attempts through executive actions, it is up to Congress to make real change.

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