As more states jump on the medical marijuana bandwagon, employers are faced with increasing questions about how these changes in the law affect drug testing policies. The conventional wisdom has been that medical marijuana use, like alcohol, may be lawful for personal use, but employers can still terminate employees who show up for work under the influence.

On June 15, employers received some guidance from Colorado, one of the early adopters of legal marijuana use. The Colorado Supreme Court affirmed the dismissal of a wrongful termination case filed by a quadriplegic who worked for Dish Network. The employee was paralyzed in a car crash and used medical marijuana as a pain medicine. He tested positive in a random drug test in 2010 and was terminated. He filed suit claiming that the discharge violated Colorado state law, which makes it illegal to terminate an employee for engaging in a “lawful activity” outside of work.

The Colorado Supreme court noted that marijuana is still a controlled substance under federal law, therefore marijuana use is not a “lawful” action in an unrestricted sense. This rationale is troubling since there is a move afoot to change federal law to conform with the growing state court trend to allow marijuana. This holding suggests that if federal law was changed, the result would have been different, and the employee would have been protected from termination.

Our firm’s alert on the case can be found here, and this is an important read for all HR professionals in states where medical marijuana has been legalized.