Posted by Ryan Howard on Tue, Mar 25, 2014
As of January 2014, Amendment 64 to the constitution of the State of Colorado went into effect. The amendment makes it legal for people over the age of 21 to use and possess up to one ounce of marijuana. Retail stores have begun to legally sell marijuana in that state.
Some Colorado employees have a false sense of security, believing they cannot be fired for using marijuana now that it is legal. Employers, both those in Colorado and other states, are concerned. They wonder if they can still have marijuana use as part of their employment screening background checks when it is legal to use it in Colorado.
Employers worry that the law may interfere with their policies that forbid employees from using marijuana. For example, employees from one state may travel to Colorado on vacation and engage in the lawful activity of smoking marijuana. Since they only engaged in the legal use of the drug, they may believe they cannot be fired for using it legally.
Marijuana can show up in the urine long after the use of the drug. It is possible for an employee to have a positive test weeks after returning from vacation and going back to work in the state where marijuana use is still illegal. The employee’s argument that the use was legal will fall on deaf ears and the person may still be terminated from the job.
Colorado law allows employers to fire employees for legal use of marijuana
Currently, there are several reasons why Colorado employers can still enforce their no marijuana policies and include drug use in their employment screening background checks.
- Amendment 64 has a specific provision that allows Colorado employers to have policies restricting the use of marijuana by their employees.
- Colorado law has a statute termed, “Lawful Off-Duty Activities Statute” that says that employees cannot be fired for legal acts they engage in on their own time. Although it would seem that this would prevent the firing of an employee who used marijuana when not at work, a Colorado appellate court recently ruled that it is not applicable to Amendment 64. The court said that as long as marijuana use is illegal under federal law, the provision prohibiting employers from firing employees for legal conduct does not apply.
- Under federal law, marijuana is still a Schedule I Controlled Substance. When state and federal laws conflict, federal law takes precedence over state law. Since marijuana use is still prohibited under federal law, employers may fire employees for illegally using the drug.
- The appellate court also concluded that Amendment 64 did not create a right to use marijuana. It only created an exemption from prosecution for those who legally use the drug.
Employment screening background checks may still include marijuana use
According to the Colorado Court of Appeals, there was no “legislative intent to extend employment protection to those engaged in activities that violate federal law.” Also, since a positive marijuana urine test cannot identify when the marijuana was used and may be positive even weeks after the last use, there is no way to know whether the use was on or off the job.
Even if the legal use would prevent the employee from being fired, there is no way for employees to prove their positive test was the result of legal use of marijuana while on vacation in Colorado. Therefore, a positive marijuana use test may still be a reason for terminating an employee from employment not only in Colorado but in every other state where use is still illegal under federal and state law.