Numerous states have authorized the use of medicinal marijuana.  Several others have even permitted limited recreational use.  How does this movement coincide with an employer’s “zero tolerance” policy of prohibiting drug use, whether during or after working hours?

According to the Colorado Supreme Court (one of the few states that has permitted not only medicinal marijuana but also recreational use), an employer may terminate an employee’s employment if the employee fails a drug test and the employer has a policy prohibiting drug use.  What is somewhat remarkable about this case is that it involved the use of medicinal marijuana by the employee only during non-working hours, yet one of–if not THE–most liberal (or progressive, depending on your views!) states when it comes to legalization of marijuana ended up upholding the termination.

The employee involved was a quadriplegic who obtained a state-issued license to use the marijuana to control seizures. The employee consumed the marijuana at home, after work.  After testing positive for tetrahydrocannabinol following a random drug test, Dish Network terminated the employee’s employment for violating its drug policy. The employee did not file a claim for failing to make a reasonable accommodation under the Americans with Disabilities Act (ADA), but rather claimed that his termination violated the Colorado state statute that prohibits employers from terminating employees for engaging in “lawful activities” off the premises of the employer during non-working hours.  While the use was clearly lawful under Colorado state law, the Colorado Supreme Court held that the statute did not limit the definition of “lawful activities” to just state laws, and since the use of marijuana (even for medicinal purposes) is still unlawful under federal law, the employer’s decision to terminate did not violate Colorado’s state statute.

Because the ADA is a federal statute and any use of marijuana remains illegal under the federal Controlled Substances Act, employers are still protected from terminating employees who claim to use marijuana to treat a disability or conditions arising therefrom.  But with the trends and changing of views regarding medicinal and recreational use of marijuana, it is likely that we will see an increase in “failure to accommodate” claims where individuals have a physician-approved reason for using marijuana and such use is limited to after working hours and away from the company premises.  This is an evolving area of the law that employers would be wise to keep an eye on over the next several years.