Legal Pot Smoking Not Protected by Disability Discrimination Law

Clifford Geiger
Clifford Geiger
08/29/2013

According to a federal court in Colorado, having a prescription for medical marijuana does not excuse a failed drug test.   Curry v. MillerCoors, Inc., Docket No. 1:12-cv-02471 (D. Colo. Sept 17, 2012)

Paul Curry worked for MillerCoors, Inc.  According to his complaint, Mr. Curry suffers from hepatitis C, osteoarthritis and pain, and he is licensed by the State of Colorado to use medical marijuana pursuant to that state’s Medical Marijuana Amendment, Colo. Const. Art. XVIII, § 14. Mr. Curry alleged that he used marijuana within the limits of the license, never used marijuana on MillerCoors’s premises, and was never under the influence of marijuana at work. Nonetheless, MillerCoors fired Mr. Curry after he tested positive for marijuana, which is a violation of MillerCoors’s written drug policy.  Subsequent to his termination, Mr. Curry filed a lawsuit alleging disability discrimination and wrongful discharge in violation of Colorado’s lawful activities statute.

Mr. Curry alleged that he was discharged because he was using marijuana to manage the symptoms of disabling medical conditions.  The court dismissed this claim because “anti-discrimination law does not extend so far as to shield a disabled employee from the implementation of his employer’s standard policies against employee misconduct.”  Therefore, a termination for misconduct (in this case violation of the employer’s drug policy) does not become disability discrimination because the misconduct somehow relates to a disability.

Mr. Curry also alleged that he was fired in violation of Colorado’s lawful activities statute, which prohibits an employer from discharging an employee for engaging in any lawful activity off the premises of the employer during nonworking hours.  C.R.S. § 24-34-402.5.  The court held that it must consider both state and federal law to determine what constitutes “lawful activity” for purposes of C.R.S. § 24-34-402.5. Even though Mr. Curry’s medical marijuana use was permitted by state law, it was prohibited by federal law.  Therefore, Mr. Curry was not discharged for “lawful activity.”

 

 

 

 

 

 

 

 

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