Up in Smoke? 

Even in Colorado, a possible test-case state, employers still have rights to penalize marijuana users.

On January 1st, the nation's first marijuana retail stores opened in Colorado. This landmark event came approximately 14 months after Colorado voters approved a constitutional amendment in November 2012 to legalize the recreational use of marijuana. Washington State has enacted similar legislation, and Washington, D.C., and at least 20 states — including Colorado and Washington — have authorized the use of marijuana for medical purposes.

This month, state Representative Sherry Jones (D-Nashville) introduced HB1385, legislation to allow people suffering from certain diseases to use marijuana to treat their symptoms, if their doctor states that its benefits outweigh its health risks to that patient.

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Here's a caveat: Despite new state laws liberalizing marijuana use, it is still illegal to possess and use marijuana under the federal Controlled Substances Act, which lists marijuana as a Schedule I controlled substance, indicating it has high potential for abuse and has not been accepted as a safe form of medical treatment in the U. S.

More recent guidance suggests that the Department of Justice will prioritize the prosecution of marijuana-related crimes of national significance, which excludes many individual recreational users. However, the Controlled Substances Act remains unchanged. Employers may therefore take comfort in the fact that both medicinal and recreational marijuana use continue to be prohibited under federal law.

In Colorado, employers will also be insulated from employee claims of discriminatory practices or privacy violations by the text of the enabling legislation — Amendment 64, itself. The Act specifically states that employers reserve the right to continue drug testing and similar practices. It further states that employers may restrict the possession, distribution, or use of marijuana on company property.

Recent litigation involving marijuana in the workplace has focused on whether employers in states that have decriminalized medicinal marijuana can restrict its use outside of working hours. Despite Colorado's legalization of medical and recreational marijuana, much controversy has centered on whether these uses can be properly described as lawful.

Employers in Colorado have the authority to enforce company policies restricting employees' lawful activities when the policy relates to an occupational requirement; when the policy relates to an employee's particular job responsibilities; or when a conflict of interest may result. If any of the three statutory exceptions apply, employers have firm legal grounds to administer drug tests and terminate employees who test positive.

Similarly, the U.S. District Court for the District of Colorado agreed that the Colorado State's Lawful Activities Statute does not extend to an employee's firing due to medical marijuana use. In Curry v. Miller, the court held that employers are entitled to implement and enforce written drug policies, and Colorado's statute does not shield an employee from the company's standard practices. Put simply, the plaintiff employee had been terminated because of his misconduct, rather than because of his disability.

Since individuals with severe illnesses and disabilities are afforded more protection under the law than healthy people, it is unlikely that the courts would afford protection to employees who use marijuana recreationally. We can therefore expect courts to lean just as heavily in favor of employers once disputes arise in the wake of Amendment 64.

Colorado's growing body of case law serves as a reliable indicator of how other jurisdictions will treat the same or comparable issues. Washington State — which is expected to open retail marijuana shops this year — has similarly dismissed medicinal marijuana users' claims against employers. The Supreme Court of Washington explained that allowing such actions for wrongful termination directly conflicts with the state's long-standing at-will employment doctrine.

While public policy may in some instances overcome the state's deference towards employers in termination decisions, the court found that a clear public policy existed against forcing employers to sanction their employees' illegal activity.

In sum, Colorado's Amendment 64 has not resulted in the complete legalization of marijuana in Colorado. As a best practice, all employers should reiterate to employees that violations of federal controlled substance laws are still grounds for termination and revise their corporate policies as necessary.

While it may be some time before medical or recreational use of marijuana is legalized in Tennessee, employers should keep an eye on this developing trend.

Robert Meyers and Meghan McMahon of the Glankler Brown law firm focus their practice on representing employers. Neither smokes marijuana nor advocates its use.

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