Our last newsletter reported on the importance of proving in an unemployment compensation proceeding that a drug testing laboratory used by an employer is licensed or certified, when the employer is relying on positive test results to oppose a dismissed employee's unemployment benefits claim.  Indeed, a new decision from the Colorado Court of Appeals indicates that, with such evidence, a medical marijuana user who is fired for a positive test result is not eligible for such benefits.  In Beinor v. Industrial Claim Appeals Office, ___ P.3d ___, 2011 WL 3612226 (Colo. App. Aug. 18, 2001), the Colorado Court of Appeals upheld the Order of the ICAO denying unemployment compensation benefits to a discharged employee who had tested positive for marijuana.  The employee presented evidence that he used "medical marijuana" for severe headaches, as recommended by a physician.  The employer did not contest the employee's eligibility to use medical marijuana, and it did not argue that the employee's marijuana use adversely affected his job performance.  Rather, the employer simply contended that the discharged employee was disqualified from receiving benefits because of C.R.S. § 8-73-108(5)(e)(ix.5).  This section of the law allows denial of benefits if the employee tests positive "during working hours" for a "controlled substance" that is "not medically prescribed."  Notably, the claimant did not dispute the accuracy of the test results or the certification of the lab that performed the test.    

The Deputy's initial decision denied the employee's request for benefits.  The Hearing Officer reversed, finding that (1) the claimant was eligible to be on the medical marijuana registry, and (2) there was no evidence his marijuana use had adversely affected his job performance.  The ICAO reversed the Hearing Officer, agreeing with the employer that the employee was disqualified under C.R.S. § 8-73-108(5)(e)(ix.5).  The Court of Appeals has now affirmed the ICAO's decision.

In approving the ICAO's Order, the Court of Appeals noted that medical marijuana is not "prescribed" by a physician; rather, a physician may "recommend" its use under certain circumstances.  Accordingly, the marijuana ingested by the claimant was "not medically prescribed" within the meaning of C.R.S. § 8-73-108(5)(e)(ix.5), and denial of benefits under that section was appropriate.  The Court then held that this denial of benefits based on the use of medical marijuana did not violate the Colorado Constitution, specifically, Article 18, § 14, the constitutional amendment dealing with medical marijuana.  In doing so, the Court observed that this constitutional amendment created limited exceptions to Colorado's criminal laws, and that the denial of benefits in this non-criminal setting did not violate the amendment. 

The employer in this case had a "zero-tolerance drug policy."  Although it does not appear that the Court relied on that fact in reaching its decision, employers wanting to maximize the likelihood that they will prevail in either unemployment claims or wrongful discharge cases based on medical marijuana use may consider adopting such a policy.