Medical-marijuana users on uncertain ground in workplaces

The paper printed the letter, and soon afterward Wenzel found herself face-to-face with the human-resources director of the nonprofit organization she works for. Wenzel's office, her HR director told her, is a drug-free workplace.

"It is kind of scary when your HR department is telling you that you could be fired," Wenzel said. "And it's like, 'Why?' "

To Colorado's already-vexing cannabis conundrum, add yet another riddle: Are medical-marijuana patients protected from discipline under their employers' anti-drug policies?

In the past week, two other stories that pose such a question have emerged:

• In the first, an Idaho Springs high school teacher and football coach resigned from the school after being charged with smoking marijuana on school grounds, even though he said he was a legal patient.

• The second involves a Denver city employee who failed a routine drug test taken after an on-duty car accident. The employee said medical-marijuana use accounted for the positive test.

Can an employer punish someone for doing something that is constitutionally protected?

"This issue is up in the air right now," said Vance Knapp, a Denver lawyer with Sherman & Howard who deals in employment law. "It hasn't been litigated through the courts."

In other words, nobody really knows yet.

The constitutional amendment that authorizes medical marijuana in Colorado has this to say on the matter: "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place."

That provision makes on-the-job use or impairment a clear violation at a drug-free workplace, but the outer boundaries of the provision are subject to greater debate.

Advocacy organizations contend that employers have interpreted the language broadly, using it to punish even patients who use medical marijuana in off-the-clock hours and never show up to work impaired, as Wenzel said she doesn't.

"It's been deciphered to mean that employers can fire a medical-marijuana patient for just about anything," said Brian Vicente, the executive director of the medical-marijuana patient-rights group Sensible Colorado. "Basically, it's a form of legalized discrimination against sick people who choose to use medical marijuana."

Courts ruling on similar questions in two other states — California and Montana — have sided with employers in giving them authority to fire medical-marijuana patients who fail company drug tests. But there are two key ways in which Colorado's laws differ from those states:

• Colorado's medical-marijuana law is embedded in the state's constitution rather than just statutes.

• Colorado has something called the Lawful Off-Duty Activities Statute, which prevents employers from punishing employees for doing something off-duty that is legal.

Boulder lawyer Jeff Gard, who represents medical-marijuana patients and said he gets several calls per week from patients worried about keeping their jobs, said state and federal anti-disability-discrimination laws also would protect patients.

"You're not going to tell a diabetic, 'We're going to fire you for using insulin,' " Gard said.

Knapp, the Denver lawyer, said marijuana's status under federal law as an illegal drug — no matter how it's used — could nullify all those laws' protections. But he quickly noted that an Arapahoe County judge's recent ruling — in which the judge said a city couldn't cite federal law to shut down a medical-marijuana dispensary — might counter that argument.

For now, Knapp said he is advising the employers who ask him about the issue to update their anti-drug policies to specify that they include drugs that are illegal according to federal law as well as locally.

"Employers need to be very cautious in addressing this situation because there are a lot of land mines out there," Knapp said.

John Ingold: 303-954-1068 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Employer protection

From the 20th Amendment to the Colorado Constitution authorizing medical use of marijuana:

"Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place."