A federal court in Colorado recently dismissed a lawsuit alleging that MillerCoors violated Colorado law by terminating an employee based on off-duty, off-premises use of medical marijuana after he tested positive for marijuana. The decision, Curry v. MillerCoors, Inc., was the first in which a court rejected claims for discrimination and invasion of privacy for medical marijuana use under Colorado law. Employers can learn important lessons about drug testing from the case.

Curry’s Use of Medical Marijuana

Paul Curry suffered from hepatitis C, osteoarthritis, and pain. He obtained a license from the State of Colorado for use of medical marijuana. Curry alleged that he used marijuana within the limits of his license under state constitutional and statutoryprovisions, never used it on company’s premises, and never was under the influence of it while at work. Testing positive for marijuana was a violation of MillerCoors’s anti-drug policy, however. When Curry tested positive for marijuana, the company fired him.

Rejection of Curry’s Claims

Curry sued MillerCoors and asserted four claims. He first contended that it was disability discrimination for the company to discharge him because of the treatment he was using to manage his disabling medical conditions. (He did not argue that the company should have accommodated him by permitting use of marijuana, because the Colorado’s Constitution and implementing statute provide that an employer is not required to make such an accommodation. Nor did he allege that the company’s policy was applied differently to non-disabled employees.) The court noted that aprovision of the state’s unemployment security act expressly permits such a termination, a conclusion validated by two Colorado Court of Appeals decisions,one in 2005 involving recreational use and one in 2011 involving medical use. U.S. District Judge John Kane explained that, “a termination for misconduct is not converted into a termination because of a disability just because the instigating misconduct somehow relates to a disability.… [T]hough Mr. Curry may never have used medical marijuana absent his disability, MillerCoors did not unlawfully terminate him ‘because of’ his disability.”

To establish his second claim for invasion of privacy based on unreasonable intrusion into his private affairs under Colorado law, Curry had to allege that the intrusion was highly offensive to a reasonable person or was for an unwarranted purpose. By requiring employees to inform MillerCoors of their recommendations for medical marijuana, he said, the company’s policy required them to disclose private, confidential medical information. But Curry did not allege that he had disclose such information, the court said, and a claim could not be based on an action that had not occurred. Further, even if Curry had disclosed the information, the company’s request for it was not an unreasonable manner of intrusion or an intrusion for an unwarranted purpose. Curry went on to claim that the drug test itself invaded his privacy. But, concluded the court, the law allows drug testing, the use of a swab is “minimally intrusive” and “[is] not offensive to a reasonable person,” and dismissed the claim.

Finally, Curry asserted that MillerCoors had violated Colorado’s statute prohibiting termination based on his “lawful activity off the premises of the employer during nonworking hours.” After the filing of the case, but before Judge Kane’s decision, the Colorado Court of Appeals held, in Coats v. Dish Network, LLC, that that statute encompassed both state and federal law. The use of marijuana was still prohibited under federal law. As a result, Dish court concluded that medical marijuana use–on or off-duty and on or off the work premises–was still illegal. As anticipated, the statute did not shield Curry from termination. As a result, Judge Kane rejected his claim.

The final claim Curry asserted was discrimination based on his membership in a protected class of people, marijuana users, which was prohibited under another Colorado statute, C.R.S. § 24-34-402(1)(d). The court held, however, that that statute prohibited discrimination against union members, not members of the class of medical marijuana users and dismissed that claim also.

Employer Takeaways

Recent decisions under Colorado law, like Curry, affirm an employer’s power to implement, administer, and apply their drug testing policies and discharge employees who violate them. But there are a number of lessons that employers can take away from the Curry decision to ensure that they minimize their risks in doing so:

If You Test for Drugs, Use a Written Policy. In concluding that an employer has a right to have and apply its drug testing policies, the court relied on Colorado’s Employment Security Act and its provision, C.R.S. § 8-73-208(5)(e) (IX.5), mandating disqualification from unemployment benefits to an employee who violates a written drug testing policy properly administered by the employer.Curry was not an unemployment case, and if MillerCoors had not had such a policy, it is unclear whether the result would have been different. But the fact that it did have such a policy precluded the employee from complaining about it and obviated the need for the court to address it. To clarify employee expectations, ensure that violators won’t get unemployment benefits, and avoid claims based on the lack of a policy, it is always better to establish and communicate to employees a written policy on drug testing.

Include a Policy Provision Regarding Non-Cooperation. The drug testing inCurry was a simple swab test that the court found “minimally intrusive.” But if the drug testing had used a significantly more intrusive drug testing method or administered the test without his consent, the result might have been different. Every employer’s drug testing policy should address that circumstance by stating that it is a violation of the policy to refuse to participate in a drug test, subjecting the employee to discipline, up to and including termination. If an employee chooses to refuse the test, she will know the consequences. Ensure that an third-party administrator of your drug tests follows this policy also.

Apply Drug Testing Policies Consistently. Judge Kane pointed out that Curry had not alleged that drug testing had been applied discriminatorily. For example, he did not say that MillerCoors tested employees with hepatitis C or osteoarthritis differently than it tested those who did not suffer from them. Make sure that your organization applies its drug testing policies the same to everyone and train your supervisors to do so.

Avoid Requiring Employees to Divulge Whether Their Doctor Has Recommended Medical Marijuana Use. The court did not address what would have occurred had Curry complied with the portion of MillerCoors’s policy requiring disclosure of such a recommendation. The allegations did not warrant it. But to avoid disability discrimination, privacy, and other claims, an employer always should be careful in under what circumstances it seeks medical information from prospective or current employees. Further, to preclude a terminated employee from challenging the discharge remember that it is notillegal under state or federal law to have obtained from a physician a recommendation for a medical marijuana license. Nor is it illegal to apply, receive or carry such a license. It is only illegal under federal law to use, possess, or distribute marijuana.