Curtis Graves, Employment Law Services
While the Implementation Task Force wrestles with creating regulations on Amendment 64, employers can manage the risk associated with terminating employees for marijuana use.
At the heart of the issue is marijuana’s status vis-à-vis Colorado’s legal off -duty activities statute, which makes it illegal for employers to terminate employees for engaging in legal conduct while off-duty, with some exceptions. While marijuana remains illegal under federal law, it’s foreseeable that an employee terminated for testing positive for marijuana will claim that his or her usage took place off -duty, and that they were therefore protected from termination. While this argument may ultimately fail in court, no employer wants to be the test case. There are several things you can do to ensure that the zealous plaintiff s’ attorneys target someone else’s company.
First, the legal off -duty activities statute only applies to employees, not applicants. Therefore, if you are inclined to do drug testing, pre-employment testing is a good way to prevent drug use from getting a foothold in your business. It allows employers to completely avoid the argument that an employee can’t be terminated because of off -duty use.
Employers need never tolerate on-the-job drug use or impairment under Amendment 64 or any other law. Thus, a properlytrained supervisor who sends an employee for a urinalysis (or saliva or blood) test after documenting signs and symptoms of drug use stands the best chance of surviving a legal challenge (assuming the employee tests positive for THC or its metabolites). Under these facts, the employer will argue that on-the-job impairment was evident, and the drug test merely confirmed that the employee’s supervisor correctly assessed impairment.
While the referenced statute prohibits terminating employees for legal off -duty conduct, it provides exceptions where prohibiting “legal” conduct “(a) … is reasonably and rationally related to the employment activities and responsibilities of a particular employee … or (b) is necessary to avoid a confl ict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.” This language suggests that employers will probably be able to terminate employees who test positive for marijuana without legal repercussions when those employees are engaged in safety-sensitive occupations. These employers will argue that even the possibility of impairment is so fraught with risk that they are outside the statute’s reach and instead fall under its exceptions.
By this summer, regulations will be in place that will remove much of the guesswork surrounding Amendment 64. In the meantime, members are encouraged to call MSEC for guidance.