Colorado Court of Appeals clarifies unemployment eligibility rules related to marijuana use

The Colorado Court of Appeals has clarified how Colorado’s medical and recreational marijuana laws impact eligibility for unemployment. The case involved an unusual fact pattern that provided the court with a springboard to articulate four rules. The worker was on medical leave, but worked for a financial institution to which he personally owed money. Although he was on medical leave, he still had to come in occasionally to make payments on the loan he owed his employer. While there to make a payment, HR advised that he had come up for a random drug test, on which he tested positive for marijuana. Thus the Court was faced with a case where the person was still an employee but obviously not engaged in or even able to be engaged in actively performing job duties at the time he was tested.

The lower court looked at only one subsection of the unemployment-eligibility statute, CRS 8-73-108(5)(e)(IX.5). Subsection IX.5 renders a worker who tests positive for even otherwise lawful marijuana to be ineligible for unemployment if the test was taken “during working hours.” Because the employee was on medical leave, the court held his positive test did not arise from a sample taking “during working hours.” The lower court then held that because subsection IX.5 was so specific to marijuana, it was not able to look at other sections of the statute.

The Colorado Court of Appeals reversed. The Court of Appeals held that other subsections still apply, not just IX.5. Looking at all the other subsections, the Colorado Court of Appeals held there are at least four ways a worker can be disqualified form receiving unemployment in Colorado due to otherwise lawful marijuana use:

  1. A positive test “during working hours”;
  2. A positive test during or outside working hours that had or could have had an adverse impact on the company;
  3. A positive test during or outside working hours that interfered with the employee’s job performance;
  4. A positive test during or outside working hours that rendered the employee unable to meet “established job performance or other defined standard.”

Here is the full quote from the Colorado Court of Appeals:

Any conflict among the provisions at issue in this case is not irreconcilable.  Subsection (IX.5) disqualifies an individual for the sole reason that he or she had a positive drug or alcohol test while working, essentially dispensing with the need for an employer to establish any impairment of the employee’s abilities or adverse effect on the employer’s business.  However, subsection (VII) would apply where an employee violates an employer’s rule prohibiting drug use, whether on or off the job, but an employer would be required to demonstrate that the employee’s drug use had, or could have had, adverse impacts on the company.  Similarly, subsection (VIII) could be applied to off-the-job drug use but requires proof that the drug use interfered with the employee’s job performance.  And subsection (XX), when applied in a drug use or testing scenario, requires the employer to establish that an employee’s drug use or failed drug test caused him or her to fail to meet an established job performance or other defined standard.  Because there is no irreconcilable conflict, all provisions of the statute are amenable to harmonious construction, and thus must be given effect.  

Source: M&A Acquisition Corp. v. ICAO, — P.3d —, case no. 19CA0679 (Colo.App. 11/21/19).

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