Employment Law vs Legalization
When federal laws contradict state regulations, what rights do employees have?
Colorado employees and employers are caught in a legal tug-of-war between Colorado state laws that say medical and recreational marijuana is legal, and the federal laws that still prohibit it. This raises many difficult questions, both for professionals who are looking for ways to balance their personal use of legalized marijuana and for employers who must consider new concerns about worker safety and legal liability.
Last year, in a highly publicized and case, Brandon Coats lost a case against his former employer, Dish Network. Coats, who was paralyzed as a teenager in a car crash, was licensed to use medical marijuana to help control complications of his injury. During a routine random drug test at Dish Network, he informed the testing company that the THC from his legal marijuana use would likely be detected. When the test came back positive for marijuana, Dish Network fired him. The company never claimed he was impaired while on the clock.
The Colorado Court of Appeals ruled in April 2013 that Colorado’s Lawful Activity Statute, which prohibits an employer from terminating an employee “due to that employee’s engaging in lawful activity off the premises of the employer during non-working hours,” did not apply to medical marijuana use. The court ruled that since the statute does not define “lawful” as applying to only state law, the activity must be legal under both state and federal law in order for the statute to apply. The Colorado Supreme Court announced in January it would hear an appeal. The court will likely hear arguments this summer and deliver a decision by the fall. “We’re hopeful the Supreme Court will reverse the appeals court decision,” said Rachel Gillette, the Boulder, Colo. attorney who serves as executive director of Colorado NORML. “There are much better ways to determine impairment and improve safety in the workplace.”
Revisiting drug policies The Coalition for Drug Testing Policy Reform, a collection of 20 employers, patients, lawyers and advocacy organization, is working to create model employer drug policies that respect Colorado employees’ ability to use marijuana for medical and recreational purposes, Gillette said. “We’re also creating a proposed local ordinance modeled on the Boulder policy,” Gillette said. Boulder prohibits most random drug testing by employers within city limits. Employee rights are also a concern for people working in the marijuana industry. Dispensaries and grow operations are currently not able to open 401(k) and other retirement accounts for employees. “Our position has been that since it’s still federally illegal, it’s considered money laundering,” said Leasha Larsen, Southern Colorado regional leader for Edward Jones Investments. “Because the state and federal governments have a difference of opinion about the use of marijuana, this is a situation that we would most likely avoid,” said Jackie Knolhoff, Edward Jones public relations spokesperson.
“The bottom line is, all these problems – banking, employment and legal – can be solved if the federal government would stop covering their ears and eyes, and reschedule or de-schedule marijuana,” Gillette said. Until that happens, Colorado medical and recreational customers will need to study their employer’s policies and watch for the state Supreme Court ruling in the fall.