Even in Colorado, you can be fired for off-duty drug use

McNees Wallace & Nurick LLC

Remember this one about the employee fired for legal drug use? How about this one? It seems that we have been talking more about the impact of legal marijuana use on employment since 2012, when voters in Colorado and Washington lit up (pun intended) the blogosphere, with their landmark votes to legalize its recreational use.  Since then, many states have legalized both recreational and medicinal use.

The Colorado Supreme Court on Monday (in a 6-0 decision) ruled in favor of Dish Network LLC, finding that the Company did not violate the state’s “lawful activities statute” when it terminated a quadriplegic in 2010 for a positive drug test, because the employee’s medical use of marijuana was lawful under state law.  That’s good news for national employers that, like Dish Network, are committed to complying with federal drug statutes.

Legalization hasn’t hit Pennsylvania just yet.  Last month, the Pennsylvania Senate overwhelmingly approved Senate Bill 3, which would allow registered patients to use medical cannabis and to safely access it from regulated dispensaries.  If passed in its current form, SB3 would prohibit discrimination in employment against a cannabis access cardholder and an employer could take that status into account “only if the employer can prove the employee is abusing or misusing the employee’s medical cannabis on the premises of the place of employment during ordinary hours of employment or if failure to do so would cause an employer to lose a licensing benefit under Federal law or regulation.”

So far, we haven’t recommended that Pennsylvania employers abandon their zero-tolerance drug testing policies.  Instead, we have cautioned that where an employee’s use of the substance is lawful (recreational or medicinal), there may be a challenge if the employer elects to proceed with termination. The good news is, for now, some early challenges are being turned back.

Again, in its current form, SB3 provides that a positive drug test “may not be considered by an employer unless the individual unlawfully used, possessed or was impaired by the medical cannabis while on the premises of the place of employment or during the hours of employment.”  So, it seems that a positive test result (pre-employment or random) would trigger a need for further investigation, or an interactive process akin to that under the Americans with Disabilities Act.  The employer would need to ascertain whether the applicant or employee is a “cannabis access cardholder” and whether the employee was impaired while on the premises or during working hours.

Stay tuned . . .

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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