Marijuana and your company: Will court case turn your HR upside down? Email
Wednesday, December 10, 2014 11:45 AM

 judge gavelDid Dish Network act lawfully when it terminated employment of a quadriplegic who suffered from debilitating muscle spasms and possessed a valid medical marijuana prescription? That’s the case currently before the Colorado Supreme Court (CSC).  The court’s ruling is likely to impact your company – and businesses in all states.

Dish’s termination decision was based on the employee’s positive test for marijuana use even though he was never under the influence of the drug on company premises. Was this wrongful termination under Colorado’s “Lawful Activities” law which prohibits termination for off-the-clock legal behavior? Or was the termination lawful because marijuana use is illegal under federal law?

Court action to date:  The Colorado trial court dismissed, ruling that the employer had acted lawfully. The Court of Appeals agreed, reasoning that the employment termination was lawful because marijuana use is illegal under federal law and thus could not be considered “lawful activity” under Colorado’s “Lawful Activities” law. CSC heard arguments on the case in October, and a decision is expected by year’s end. Here is what could happen based upon where their decision falls:

  • If the CSC affirms the ruling in favor of the employer, it will likely strengthen the right of employers in all states to terminate employment for any and all marijuana use, regardless of the legality of marijuana use under state law.
  • A CSC outcome in favor of the employee, in contrast, would likely lead only to further confusion for employers across the country. Blanket bans on marijuana use would have to be reassessed, and employers may have to revise their policies relating to prescription drug use more generally.

More implications
If courts continue to defer to federal law when evaluating claims brought under state marijuana laws (as the trial and appellate courts did in the Dish Network proceeding), employers will be able to continue to enforce zero-tolerance drug policies and to discipline employees who fail drug tests as a result of marijuana use.

But if courts begin to look at medical marijuana laws as a state sovereignty issue, resulting in deference to state legalization laws, employers may have to wade through a dual system in which medical or off-hours recreational marijuana use has to be tolerated under state law even as it remains illegal under federal law. In that case, employers will have to revise drug testing policies to reflect “intoxication” standards for marijuana metabolites, rather than imposing discipline for any presence of the drug, and they may have to consider dropping marijuana testing altogether.

Excerpted in part, Forbes, The Employment Beat: Insights on Workplace Issues by John DiNome, Dec. 2, 2014. Read the complete article.  

Read these other articles in this issue of Colorado Green NOW.

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Fox News expose of Home Adviser could be your wake-up call
Big Sky gets unexpected community service project

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