[author: Vance Knapp]

On Election Day 2012, Colorado voters approved Amendment 64 legalizing marijuana by 54.7% of the popular vote.  This Amendment shall take effect no later than January 5, 2013.  Amendment 64 allows individuals 21 or older to cultivate, use and possess limited amounts of marijuana, without having to be certified as having a serious or debilitating health condition.  In other words, marijuana will be as easy to purchase as alcohol.  Marijuana is still illegal under federal law; however, it is unclear what steps, if any, the U.S. Department of Justice will take concerning Amendment 64.  John Suthers, Colorado's Attorney General, who opposed Amendment 64, stated, ". . .voters can be assured that the Attorney General's Office will move forward in assisting the pertinent executive branch agencies to implement this new provision in the Colorado Constitution."  Colorado Governor John Hickenlooper has also said that he is trying to talk to U.S. Attorney General Eric Holder to determine how the Justice Department will respond to the passage of this Amendment [1]. As for employers, Amendment 64 contains the following restrictions with respect to marijuana in the workplace:

Nothing in this Section is intended to require an employer to permit or to accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.

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Nothing in this Section shall prohibit [an] employer or any other entity who occupies, owns or controls a property from prohibiting or otherwise regulating the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property.

Colorado voters had previously adopted Amendment 20, the Medical Marijuana Act, which permits patients who are certified by their physicians as either suffering from a serious or debilitating condition to possess and use a limited amount of marijuana.  This Amendment has spawned a cottage industry of medical marijuana cultivators and dispensaries.  Amendment 20 also restricts employee use of medical marijuana at work:

Nothing in this Section shall require any employer to accommodate the medical use of marijuana in any workplace.

In 2011, the Colorado Court of Appeals in the case of Benior v. Industrial Claims Appeals Office[2], held that authorized medical use of marijuana [under Amendment 20] may insulate an employee from state criminal prosecution, but does not preclude the employee from being denied unemployment benefits based on termination from employment for testing positive for marijuana in violation of an employer's express zero-tolerance drug policy.  Although this decision provided some support and guidance to employers in addressing marijuana in the work place, our clients have continued to grapple with several issues, including:

• What constitutes accommodation of medical marijuana use in the workplace?
• Does "use" include any positive result on a marijuana drug screen test?
• Is "use" limited to employees who are impaired on the job?
• To what extent can employers regulate the off-duty, off-premises use of medical marijuana?
• Does inconsistent enforcement of a substance abuse/zero tolerance drug policy result in greater protection for medical marijuana users?
• Employee's perceptions concerning their "right" to use marijuana v. reality.

Recently, some employees have argued that their use of marijuana is protected by Colorado's Lawful Off Duty Activities Statute[3], which prohibits employers from discriminating (terminating) employees who are engaged in lawful, off-duty, off-premises activities.  In challenging this argument, employers have asserted that using marijuana is not lawful, because it is illegal under federal law, and as such, the employees' use of marijuana is not "lawful" for purposes of this Statute.

Amendment 64, at the very least, will expand the pool of persons claiming legal protection in light of their off-duty, off-premises use of marijuana.  Moreover, employers will also need to determine if their substance abuse policies exceed the policy restrictions contained in this Amendment.  Amendment 64's provision concerning an employer's right ". . . to have policies restricting the use of marijuana by employees" is not defined.  Thus, an employee may claim that an employer cannot completely prohibit the use of marijuana in the workplace, because the Amendment only addresses policies "restricting" marijuana use, not prohibiting or banning marijuana use.

In light of this, employers should consider the following issues in reviewing their existing substance abuse policies: 

• Review your substance abuse policy to ensure that its restrictions concerning marijuana are consistent with the restrictions contained in Amendment 64.
• If your company is a direct recipient of federal funds and has occupations that are safety-sensitive, your company is required to follow the Drug Free Work Place Act of 1988, which likely supports your company's prohibition of all use of marijuana by your employees.
• Policies prohibiting the use of marijuana by employees engaged in hazardous occupations are more likely to be upheld in court than such policies when applied to those in non-hazardous occupations.
• Treat similarly-situated employees consistently under your company's substance abuse policy.
• The Americans with Disabilities Act does not require employers to accommodate the use of marijuana to mitigate the effects of a disability.
• Educate your employees about your expectations concerning your substance abuse policies. 

Finally, issues concerning the ramifications of Amendment 64 will remain influx until the U.S. Department of Justice issues enforcement guidelines concerning state constitutional marijuana legalization amendments and/or appellate courts issue decisions construing the employment provisos contained in Amendment 64.  We will continue to monitor these developments.

[1] John Ingold, Colorado Officials Seek Clarity After Passage of Marijuana Measure, Denver Post, 11/07/12.

[2] Benior v. Industrial Claims Appeals Office, 262 P.3d 970 (Colo. Ct. App. 2011).

[3] Colorado's Lawful Off Duty Activities Statute, C.R.S. § 24-34-402.5.