Colorado court finds no protections for marijuana-using workers

This fall, voters in Colorado chose to legalize the recreational use of marijuana. In doing so, Colorado became one of two states to allow recreational and medical marijuana. Eighteen others allow residents to use marijuana for medicinal purposes only.

While these laws can prevent marijuana users from getting charged with state crimes, they do not mean that people in Colorado have a completely free pass to use marijuana whenever they want. A recent ruling by the Colorado Court of Appeals held that workers can be fired from their jobs for testing positive for marijuana, even if there is no evidence that the worker was ever intoxicated on the job.

The case concerned a man with a paralyzing spinal cord injury who worked as a telephone operator in Englewood. He used medical marijuana - with legal authorization from the state of Colorado - to control debilitating muscle spasms. He says that without the marijuana, his symptoms would be so severe that he would be completely unable to work.

Despite this, the man was fired from his job in 2010 after he tested positive for marijuana during a company drug test. He sued, claiming that he should not be fired for engaging in a lawful activity during his personal time. His employer never claimed that he was under the influence of marijuana while at work.

However, the court found that the man could be terminated because his conduct was still illegal under federal law. Even though Colorado allows people to legally use marijuana, the federal government does not. Since federal law trumps state law, the court determined that the man could be legally terminated.

The man is appealing the Court of Appeals' decision. In the meantime, nearly 128,000 registered medical marijuana patients in Colorado may be at risk of losing their jobs if their employers decide to conduct a drug test.

Impact on workers' compensation cases

The ruling could also have an impact on injured workers pursuing Colorado workers' compensation claims. Many employers require workers to submit to drug testing as part of the workers' compensation claim process. This is legal as long as the employer had a written drug policy in place.

In nearly all cases, a positive drug test will not impact a worker's ability to get medical benefits to pay for treating an injury. However, it may prevent the worker from obtaining non-medical benefits, including wage-loss coverage.

A positive drug test may cause the employer to believe that the accident was caused by intoxication, which reduces the amount of non-medical benefits available. Since marijuana can stay in the blood stream for a long time, it is possible to test positive long after any intoxicating effects have passed.

If you have been injured at work but tested positive for drugs - or if you think you might fail an upcoming workers' compensation drug test - it is important to take steps to preserve your right to benefits. Talk with an experienced workers' compensation attorney who can work with you to figure out the best plan for moving forward.