The Colorado Court of Appeals has upheld an employee’s firing for off-duty marijuana use, despite medical and recreational use of the drug being allowed under state law.
A quadriplegic employee who used marijuana under the state’s medical marijuana amendment filed a lawsuit after he tested positive for drugs in violation of company policy and was fired. He claimed his employer violated the Colorado’s lawful off-duty activity statute, which prohibits termination for any “lawful activity” conducted off an employer’s premises during nonworking hours.
In its April 25th ruling, the appeals court held that the employee’s use of marijuana wasn’t lawful activity because “for an activity to be ‘lawful’ in Colorado, it must be permitted by, and not contrary to, both state and federal law.” Since marijuana use is illegal under federal law, the employer didn’t violate the law in terminating the employee.
The state’s medical and recreational marijuana use amendments don’t require employers to “permit or accommodate” marijuana use. In fact, they expressly permit policies restricting the use of marijuana. Before the appellate court’s ruling, however, courts hadn’t decided whether state or federal laws define “lawful activity” under the statute.