Colorado is a proven leader in innovation in business, but it also is a leader in innovating new legal landscapes, such as the legalization of recreational marijuana use.  While this innovation may be welcome in some sectors, the implications of this amendment to Colorado's constitution has caused headaches for employers in Colorado, particularly those who conduct drug testing.

Much of the legal landscape for Colorado employers in this arena is made more difficult by virtue of yet another unique Colorado law -- the Lawful Activities Statute (C.R.S. 24-34-402.5). The Lawful Activities Statute prohibits employers from taking adverse employment action against an employee who is engaged in lawful off-duty activity. For example, an employer may not refuse to hire someone who smokes cigarettes because smoking tobacco is a lawful activity, under both federal and state law.

Bearing all this in mind, how is an employer expected to navigate the Lawful Activities Statute, the Colorado constitutional amendment legalizing certain recreational use of marijuana, with an employer's desire to conduct drug testing and ensure a safer work environment? Until recently, employers were without guidance on the extent to which it could enforce its drug testing policies in light of the fact that certain limited marijuana use is permitted under Colorado law.

On April 25, 2013, the Colorado Court of Appeals issued its opinion in <em>Coates v. Dish Network, L.L.C.,</em> 12 CA0595 and 12CA1704 (Colo. App. 2013).   In that case, a quadriplegic employee, licensed by the State of Colorado to use medical marijuana, was fired by Dish after he tested positive for marijuana, which was a violation of Dish's drug policies.  The marijuana use took place off the premises of the employer during nonworking hours and was consistent with the Medical Marijuana Amendment to the Colorado constitution.  In this highly anticipated decision, the Court of Appeals held that while marijuana use may be lawful under Colorado state law, it is not lawful under federal law, and the Colorado Lawful Activities statute only protects activities that are lawful under both federal and state law. Specifically, the Court of Appeals stated that "...while we agree that the general purpose of [the Colorado Lawful Activities Statute] is to keep an employer's proverbial nose out of an employee's off-site off-hours business, we can find no legislative intent to extend employment protection to those who engage in activities that violate the federal law."  The Court went on to say that while the Colorado Lawful Activities Statute "promotes a "hands-off" policy for a broad range of off-the-job employee behavior, it still maintains the larger balance between employer and employee rights reflected in Colorado's law of at-will employment."

This decision resolves a key concern of employers in light of the legalization of marijuana use for medicinal or recreational purposes in Colorado.  While debate exists regarding this ruling, and it is likely that it will be appealed to the Colorado Supreme Court, employers have some assurance they are free to continue with their standard drug testing procedures for the time being, keeping in mind these best practices:
<ul>
	<li>Colorado courts and the unemployment office still want well-articulated drug testing policies that provide advance notice to the employee of the employer's intent to engage in drug testing;</li>
	<li>Employers must be consistent in their application of policies to all employees in similarly-situated positions; and</li>
	<li>Employers must treat employees with similar drug testing results in the same manner.</li>
</ul>
<em><a title="Michelle B. Ferguson " href="http://www.irelandstapleton.com/people/attorneys/bio?id=40&amp;name=Michelle%20B.%20Ferguson" target="_blank">Michelle B. Ferguson</a>, an employment lawyer at Ireland Stapleton Pryor &amp; Pascoe, PC, focuses on “preventative employment law.” Michelle works with private and public employers to be proactive in identifying and solving issues before an employment claim is filed. She also provides training to employers and their employees on all matters of employment law. </em>

<em>Michelle can be reached at (303) 628-3658 or <a href="mailto:mferguson@irelandstapleton.com">mferguson@irelandstapleton.com.</a></em>

<em>This article is intended as general information on the topic covered, and is not to be construed as legal advice. If legal advice is needed, you should consult an attorney.</em>