Amendment 20, passed a decade ago, decriminalizing marijuana use if recommended by a doctor. But, the constitutional amendment specifically says that employers aren’t required to accommodate medical marijuana users.
Employment attorneys say there is no danger in firing someone for using medical marijuana, or even having trace amounts of the drug in their system.
“Employers don’t have to set up marijuana smoking lounges to accommodate employees just because they have a registry card,” said Denver attorney Chuck Passaglia, who lectures about medical marijuana in the workplace. “They don’t even have to allow it outside of work — if they have drug testing, they can fire someone with THC in their system, even if that person has a card.”
The legal cases in Colorado have all surrounded dispensaries, and there haven’t been any cases of employees suing after they’ve been fired for using or possessing marijuana.
But Holland and Hart attorney Tobie Hazard said that the cases are coming down the pike — and employers should be ready for them.
“But the district courts in Colorado are very conservative, and they tend to look at case law developed in other states,” he said. “Montana has a much more liberal justice system, and there, every case has come out in favor of the employer.”
Oregon tackled the question during 2004 and 2006. In Freightliner v. Teamsters Local 305, U.S. District court in Oregon held that the medical marijuana act didn’t invalidate a collective bargaining provision that prohibited employees from showing up to work under the influence of marijuana or with detectable amounts of marijuana in their system.
In 2006, the Oregon Supreme court in Washburn v. Columbia Forest Products reached a similar conclusion. To enforce their non-tolerance policy, the employer administered a test that could determine whether a person used marijuana within the last three weeks.
An employee used the drug regularly before bed, tested positive for the drug and was placed on a leave of absence. Soon after, he asked to take a different test that focused only on whether he was drug impaired at work. Discussions broke down, and the employee was fired.
He sued, and the Oregon Supreme Court found in favor of the employer, deciding that the employee wasn’t disabled under the state’s disability law. The justices also held that marijuana remains a Schedule 1 drug under the federal Controlled Substances Act, so a person cannot legally be under its influence — no matter what state law says.
“State medical marijuana laws have absolutely no impact on federal regulations,” Hazard said, pointing to a Highlands Ranch dispensary owner recently arrested on federal drug trafficking charges. The man said publicly he had 250 marijuana plants. The problem — he only had 12 patients.
“I think he’s toast,” Hazard said.
The federal government has weighed in on the employment and medical marijuana issue as well. Last October, the U.S. Department of Transportation issued a release reminding trucking companies, railroads, airlines and transit system companies that state medical marijuana laws do not trump federal drug testing requirements.
Passaglia tells employers to be careful — that they should have a written policy in place detailing the company’s stance concerning medicinal marijuana.
“They need to spell it out,” he said. “If they have a zero tolerance policy, they need to say so. If there is testing in the workplace, they need to say whether having amounts of THC, even trace amounts, will be a firing offense.”
Employers should review drug polices to make sure it prohibits employees from possessing, selling and using drugs at work, but also prohibits them from being under the influence or having detectable amounts in their system.
“If the job is safety-sensitive, apply a drug free workplace policy without exception,” he said.
But Hazard said that isn’t necessary, the issue is already covered by the state amendment. Employers would be better suited to making sure the underlying condition — whatever disability led them to the medical marijuana prescription — is covered.
“Consider meeting with the employee and consulting medical professionals to determine whether there are medications or therapies other than medical marijuana that he can use to deal with this disability,” he said. “Medical marijuana might be the patient’s treatment of choice, but if there are other medications that can relieve the employee of their condition, employers might be able to require him to pursue them.”
“If they have a disability under the Americans with Disabilities Act, employers need to make sure that is being accommodated in the workplace,” he said. “But, and I cannot stress this enough, that does not mean an accommodation for the medical marijuana.”
Frequently, that’s where employers go wrong, Passaglia said.
“They fail to cover the underlying disability,” he said. “And that will get them into trouble, medical marijuana or not. If the disability is included in the ADA, accommodation has to be made.”
Hazard said the purpose of Amendment 20 is not to create a legal remedy for people using medical marijuana, but rather to create an exception to the state laws criminalizing marijuana use in medical cases.
“In all the other states with medical marijuana statutes, they’ve come out in favor of the employer every time,” he said. “It’s safe to have a zero-tolerance policy.”
Both Passaglia and Hazard say that employers are concerned about the amendment and what it means for their workplace. Hazard said he gets two to three phone calls a week about the topic.
But even if employers decide not to use drug testing and to turn a blind eye to medical marijuana use at work — they still need to be careful, Passaglia said.
“Some bosses don’t care, they say they don’t want to know,” he said. “But what if an employee is driving as part of his job — and someone gets hurt? That can make the employer liable.”
The best bet: Cover all options. If an employer doesn’t care what workers do off–duty, they at least need to have provisions about coming to work under the influence.
And those employers who do care, and provide drug testing — the courts are behind them, and so is the state’s constitution.
“Amendment 20 merely prohibits state criminal prosecution of medical marjiauna cardholders and certain others for the possession of marijuana,” Hazard said. “Nothing in the statute clearly expresses state public policy protecting employees who happens to be medical marijuana users.”