A Colorado court ruled that an employer can still fire an employee for a positive marijuana drug test, even though state law permits the medical and recreational use of marijuana.

Colorado, under a new law passed in 2012, allows recreational use of marijuana in addition to medical use. The case involved an employee who had a medical marijuana prescription and was terminated after failing a company drug test.

The employee sued, arguing that he couldn’t be fired for engaging in a lawful off-duty activity. The Colorado court upheld the termination, ruling that “for an activity to be ‘lawful’ in Colorado, it must be permitted by, and not contrary to, both state and federal law.” 

If the act violates federal law but complies with state law, the act is not lawful. Because medical marijuana use is still illegal under federal law, the Colorado court found that there was no employment protection for those engaged in activities that violate federal law.

What’s the rule in California? California employers have the right to enforce a drug-free workplace policy, even though California law allows the use of medical marijuana. In a 2008 ruling in Ross v. RagingWire Telecommunications, Inc., the California Supreme Court upheld the termination of an employee for testing positive for marijuana use – despite the employee’s medical marijuana prescription.

The court found that medical marijuana does not have the same legal status as other prescription drugs because it is still illegal under federal law.

Author: Gail Cecchettini Whaley

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