A Hopeful Sign on Medical Marijuana for Employers

By Ted Olsen

Past newsletters have discussed legal problems confronting Colorado employers when their employees use medical marijuana.  One predictable legal risk is that such an employee, if fired for a positive drug test result, will claim that the discharge violates a public policy created by the Colorado constitutional amendment allowing the use of medical marijuana. 

At this point, we have no Colorado appellate court decisions regarding medical marijuana, but - if a recent Oregon Supreme Court decision is any indication - Colorado employers should not be liable in such situations.  Emerald Steel Fabricators v. Bureau of Labor & Indus., Case No. S056265 (April 14, 2010).

Oregon has had a similar, voter-enacted Oregon Medical Marijuana Act since 1998, and the Oregon Bureau of Labor and Industries had ruled that employers had a duty to accommodate any employee using medical marijuana.  That position had been affirmed by the Oregon Court of Appeals in 2008. 

In Emerald Steel Fabricators, the Oregon Supreme Court held that Oregon employers have no duty to accommodate medical marijuana users, in part due to the fact that the use of marijuana - for medical or non-medical reasons - remains illegal under federal law.  The Court ruled that the Oregon law (like Colorado's) had simply afforded medical marijuana users a defense against state criminal charges, not a basis for civil wrongful discharge claims.

Sherman & Howard has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation. This does not create an attorney-client relationship between any reader and the Firm. If you want legal advice on a specific situation, you must speak with one of our lawyers and reach an express agreement for legal representation.

©2010 Sherman & Howard L.L.C.                                                        May 10, 2010