Colorado Marijuana Task Force Endorses Firing Employees For Off-The-Job Pot Use

A new policy recommendation by Colorado's Marijuana Task Force would allow bosses to legally fire their workers for off-the-job marijuana use.

While employers could already make that decision, the policy -- which the Legislature will ultimately have to decide whether to implement -- could be a controversial one now that marijuana possession and use have been legalized under state law.

The task force is comprised of 24 members representing various points of view from pot growers, state government officials, employers and the law enforcement community on how marijuana should be regulated in the state. The group of 24 has until the end of February to make their final recommendations to the governor on how to handle the implementation of the new law.

Back in December, Bill C. Berger, a shareholder at Brownstein Hyatt Farber Schreck LLC, wrote in The Denver Business Journal about some of the upcoming difficulties reconciling the workplace with Amendment 64:

Activists hope to create a law permitting marijuana in Colorado and Washington's workplaces. However, like their medical-marijuana predecessors, these measures don't require employers to accommodate marijuana use. In fact, Amendment 64 says it doesn't “require an employer to permit or accommodate the use” of marijuana “in the workplace or affect the ability of employers to have policies restricting the use of marijuana by employees.”

This is not a new idea, even under Amendment 20 -- Colorado's medical marijuana law -- employees were in jeopardy if found with THC in their bloodstream. In 2011, MillerCoors maintenance mechanic Paul Curry discovered that he could be fired for testing positive for marijuana, even though he was a registered medical marijuana patient.

Indeed during Tuesday's task force meeting, part of the argument reiterated this rule:

The plain language of Amendment 64 Section 6(a) makes it clear that the intent of the voters was to maintain the status quo for employers and employees, and that employers may maintain, create new, or modify existing policies in response to the passage of the measure.

A case pending before the Colorado Court of Appeals may change that rule in the future however. Brandon Coats, a former Dish Network telephone operator is fighting his early termination, arguing that it should be illegal to fire someone for engaging in legal activity while off-the-job. Coats was fired for testing positive for marijuana, though he says there was no evidence that he was impaired while on the job.

At the same time, Rep. Jared Polis, D-Colorado, introduced legislation Tuesday to federally shift marijuana to be regulated by the Bureau of Alcohol, Tobacco, Marijuana and Firearms.