The El Paso County District Court has ruled that using medical marijuana is not “lawful” protected behavior under Colorado’s legal off-duty activities statute. Hall v. Direct Checks Unlimited (El Paso Cty Dist. Ct. June 27, 2011).
Direct Checks Unlimited terminated Drew Hall when his urinalysis came back positive for marijuana metabolites. Hall sued, arguing his use of medical marijuana was protected under a Colorado statute that makes it illegal for an employer to terminate an employee for engaging in legal activity outside of work. CRS § 24-32-402.5.
“This issue revolves completely around the lawfulness of medicinal marijuana in Colorado,” wrote Judge Thomas K. Kane, acknowledging that marijuana has been decriminalized for those complying with Colorado’s regulatory framework. However, the plain language of the Colorado Constitution, which refers repeatedly to exceptions from criminal prosecution and not legalization, led Judge Kane to conclude that medical marijuana is not truly “legal” in Colorado, even for those allowed to use it.
“Although the Colorado Legislature has decriminalized use of medicinal marijuana, the court finds that the Colorado Lawful Activities Act does not encompass decriminalized behavior,” wrote Judge Kane. “Therefore, it is the court’s conclusion that use of medicinal marijuana is not protected under Colorado’s Lawful Activities Act.”
“This has been the Council’s position for the last two years,” says MSEC attorney Curtis Graves. “The Colorado Court of Appeals is addressing the same issue in another case, and we are hopeful it will adopt reasoning similar to Judge Kane’s.”