Colorado Lawmakers Seek to Change Employment-Related Marijuana Rules

Bruce Burk

Denver, CO (WorkersCompensation.com) – It is no secret that the use of marijuana is becoming more acceptable in the United States. Many states are now legalizing it either medically or recreationally — or both. But it is still an open question in many states whether employers need to accept the use of marijuana by their employees. In Colorado, the legislature in contemplating legislation that provides protections for using weed in the workplace.

Lawmakers in the Centennial State are considering H.B. 1089 which clarifies the state’s employer laws. If passed, this law says an employer cannot fire a person who uses marijuana outside the workplace. The law may be a response to the issue that marijuana is still illegal at the federal level even though Colorado has legalized it recreationally.

The relevant portions of the bill state:

(1) It shall be IS a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee’s engaging in any lawful activity THAT IS LAWFUL UNDER STATE LAW WHILE off the premises of the employer during nonworking hours, REGARDLESS OF WHETHER THE ACTIVITY IS LAWFUL UNDER FEDERAL LAW, unless such a restriction . . . .

Interestingly, the bill also has a legislative intent section which states that the reason the bill is being passed is to get rid of the right of an employer to fire a worker for using weed when they are not at work. Legislative intent is not technically part of the law but it can have major impacts if the case is ever reviewed at the appellate level. Courts often look at legislative intent carefully when trying to interpret the specific language of the statute.

This bill stands in contrast to other states like Florida which has made marijuana legal for medical use. Its legislation states that employers have no obligation to accommodate someone who is using medical marijuana. That means that an employer can still require an employee to take a drug test and fire the person for a positive result even though the worker has a prescription for it.

The bill was passed to bring the state’s code in line with the Colorado Constitution which already says that marijuana would be regulated just like alcohol. The argument made by proponents of marijuana legalization is that weed is no more harmful than alcohol. In fact, statistics show that more people die from alcohol use than marijuana consumption, they say.

Some holders of medical marijuana cards argue that they have a protected medical condition and firing someone for use of the substance should be treated as a form of employment discrimination. In the states that have legalized it for medical purposes, one has to qualify for the prescription, or recommendation, with a protected health condition such as HIV, cancer, or other serious conditions. They argue that not accommodating their use of marijuana is something that could be covered under the Americans with Disabilities Act or state law that prohibits discrimination on the basis of a health condition.

These arguments have not made their way into the appellate courts yet so we will have to wait and see how they do. We will also be monitoring this bill closely to see if it makes its way through the Colorado Legislature.

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