Medical Marijuana Developments in Colorado

An interesting constellation of events proves the issue of medical marijuana continues to evolve.

Last year, we reported that the Colorado Court of Appeals upheld a decision by the Industrial Claim Appeals Office denying unemployment benefits to an employee terminated for testing positive for marijuana. Beinor v. Indus. Claim Appeals Office (Colo. Ct. App. 2011). In that case, the court concluded that while a valid medical marijuana card insulated the claimant from state criminal prosecution, “it did not preclude him from being denied unemployment benefits” when fired for testing positive for marijuana in violation of an express zero-tolerance drug policy.

In a recent unpublished opinion from the Colorado Court of Appeals, the court remanded an unemployment case for additional fact-finding on the issue of whether the employee, Charles Meyers, knew he could be fired for “reporting to work with any detectable amount of THC [the active ingredient in marijuana] in his system.” Meyers v. Indus. Claim Appeals Office of the State of Colo. and Echosphere, LLC (Colo. Ct. App. 2012).

Meyers had a valid medical marijuana card and smoked marijuana off-duty. Meyers was subject to the company’s drug policy, which stated, “No employee shall report to work or be at work with alcohol or with any detectable amount of prohibited drugs in the employee’s system.”

Unfortunately for the employer, its drug policy failed to “identify or define ‘prohibited drugs.’” Accordingly, the court determined that “Meyers could not have been at fault if he was never informed that he could be fired for reporting to work with any detectable amount of THC in his system,” and remanded the case to determine whether Meyers knew or reasonably should have known the policy included marijuana.

“Among other things, employers’ drug policies should state what drugs are prohibited and the possible consequences for violating the policy,” says MSEC attorney Curtis Graves. “The day may come when it is no longer sufficient to define ‘illegal drugs’ as ‘any drug illegal under state or federal law.’”

Both parties in the Beinor case petitioned the Colorado Supreme Court, which chose not to hear the case. However, in denying the petition, Chief Justice Bender and Justice Marquez wrote that they would have heard arguments on two issues: whether the Colorado Constitution confers a right to use medical marijuana (or merely protection from criminal prosecution), and whether the employee was improperly disqualified from unemployment benefits, given that he had a valid medical marijuana card.

Stay tuned.