A federal court in Denver has held that an employee who was fired after testing positive for marijuana was not protected by the state’s anti-discrimination laws, even though Colorado has legalized the use of medical marijuana.  (Curry v. MillerCoors, Inc., 12-cv-02471 (JLK) (D. Colo. 2013)).

MillerCoors terminated Paul Curry after he tested positive for marijuana use during a routine drug test administered by the company.  Curry, who suffers from hepatitis C and osteoarthritis, is licensed by the State of Colorado to use medical marijuana pursuant to Colorado’s Medical Marijuana Amendment, colloquially known as “Amendment 20”.

Following his termination, Curry filed a complaint in United States District Court accusing the Chicago-based brewer of discriminating against him on the basis of his disability.  According to Curry, he was terminated “because of the treatment [medical marijuana] that [he] was using to manage the symptoms of his disabling medical conditions.”  Curry also claimed he was discriminated against for engaging in lawful activity and that MillerCoors’s drug testing policy invaded his right to privacy.

According to District Judge John Kane, however, MillerCoors was simply enforcing its long-established drug-free workplace policy.  Regardless of Mr. Curry’s medical condition, the Court held, “[Colorado’s] anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct.”

As to Curry’s claim he was discriminated against for engaging in lawful activity, the Court followed a recent ruling by the Colorado Court of Appeals expressly rejecting the proposition that medical marijuana use constitutes “lawful activity” for purposes of the state’s anti-discrimination law.  Instead, according to the Court of Appeals (and adopted by Judge Kane), “lawful activity” is that which is lawful under both federal and state law.  Since marijuana use is still illegal under federal law, Curry’s termination was not discriminatory.

Lastly, the Court dismissed Curry’s claim for invasion of privacy.  MillerCoors requires employees who are medical marijuana patients to report their status to the Company.  As Curry admitted he never disclosed to the Company his status as a medical marijuana user, however, “there was no intrusion.”  The Court also rejected Curry’s argument that the drug test, administered by oral swab, was an unlawful physical invasion.

Employers policies should note this case was decided under Colorado, not federal, law and that Amendment 20 specifically states employers need not “accommodate the medical use of marijuana in any work place.”  It is too soon to tell how courts in other states or jurisdictions will handle similar claims by employees or applicants claiming they were subject to discrimination because of their use of medical marijuana.