On January 10, 2020, Colorado Representative Jovan Melton (D) introduced House Bill 20-1089, which proposes to clarify that the existing prohibition on an employer terminating an employee for the employee's lawful off-duty activities, like off-duty consumption of alcohol, extends to activities that are lawful under state law even if they are illegal under federal law (e.g., recreational or medical cannabis).
Specifically, the bill proposes to amend the state's lawful activities statute to make it a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in "any activity that is lawful under state law while off the premises of the employer during nonworking hours, regardless of whether the activity is lawful under federal law." One stated purpose for the bill is to address the Colorado Supreme Court's 2015 decision concluding that because medical cannabis use is unlawful under federal law, it does not fall within the lawful activities statute's protection for "lawful" activities.
While the trend recently has been for states to enact specific laws that provide clear employment protections to medical cannabis users, we now are seeing more legislation providing certain protections for recreational users. As we recently reported here and here, New York City and Nevada restrict the ability of employers to consider cannabis use of job applicants (subject to narrow exceptions). If the Colorado bill is enacted, employers in that state may have to revisit their drug and alcohol testing policies and re-think when to test, whom to test (what positions or job categories), what to test for, and how to make sure decisions based on test results comply with applicable law.
In the meantime, employers with operations in Colorado should closely monitor the bill's movement through the state legislature. We will provide updates about Colorado's bill as they become available.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.