I live in the great state of Colorado, which recently legalized the recreational use of marijuana. I don't smoke pot that often, but every once in a while I partake with friends on the weekend. I just took a job at a company that provides private security for large social functions, business conferences, sporting events, and so on. Once I complete my training, I'm required to take a drug test before I go out in the field. I assume that I can't lose the job for testing positive for marijuana, because it's now a legal drug in our state. Is that right?
You are correct that recreational use of marijuana is now legal under Colorado law. However, under federal law, marijuana use is still illegal. These conflicting rules have led many to ask: Can employers fire an employee for an activity that is legal under state law, but illegal under federal law?
In recent years, many states have legalized the use of marijuana for certain medical purposes. A couple states -- Colorado and Washington -- have gone further, legalizing the recreational use of the drug. Even though marijuana remains illegal under federal law, the federal government has largely stayed out of this area.
However, the legalization of marijuana has created an interesting issue in the workplace. Colorado, like many states, has an "off-duty conduct" law, which says that employees may not be fired for engaging in legal activities on their own time. (Some states’ laws apply more narrowly to smoking or using other tobacco products, but Colorado's law is written more broadly to apply to any lawful activity.)
An employee, who was left a quadriplegic after a car accident, was fired for using medical marijuana on his own time to control painful back spasms. The employee sued his employer, claiming that the marijuana use was a "lawful" activity, so he could not be fired for it. The Colorado Supreme Court disagreed, however, finding that marijuana use could not be considered a lawful activity because it is illegal under federal law. For the protections of the off-duty conduct law to apply, the Court held that the activity must be legal under state and federal law. As long as this disparity exists, Colorado employees will find themselves in the odd position of having a legal right to use marijuana, but no protection against being fired for exercising that right.