What Employers Need to Know About Marijuana Legalization in Colorado and Washington

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Passage of these new laws doesn’t make marijuana safer. For safety reasons alone, an employer may have a difficult time proving it is maintaining a workplace free of known hazards if it once prohibited marijuana and now wishes to permit it...

On Nov. 6, 2013, Colorado (Amendment 64) and Washington state (Initiative 502) passed measures permitting some limited use of marijuana, at least under their respective state’s laws. These measures have gone farther than previous laws, which had permitted marijuana use only for medical reasons. Now even purely recreational use is permissible under these state’s laws. In both states, though, marijuana remains a controlled substance, and in all states, its use and possession remain crimes under federal law.

Here are things that employers in Colorado and Washington, who should win on all of the following issues, need to know:

- Some activists hope to create a law permitting marijuana in Colorado and Washington’s workplaces. However, like their medical-marijuana predecessors, these measures don't require employers to accommodate marijuana use. In fact, Colorado’s Amendment 64 says it doesn't “require an employer to permit or accommodate the use” of marijuana “in the workplace or affect the ability of employers to have policies restricting the use of marijuana by employees.”

- Marijuana proponents likely will argue that Colorado's courts should reconsider a 2011 ruling by the Colorado Court of Appeals that said an employee isn't entitled to unemployment when discharged after testing positive for marijuana -- even where he was a registered medical-marijuana user. However, it's unlikely that this will be reversed. Notably, the Court of Appeals' decision relied, in large part, on the “federal prohibition against prescribing marijuana.” Since marijuana remains federally prohibited, the Colorado Court of Appeals' reasoning is unaffected. Indeed, in November 2013 the Colorado Supreme Court ruled yet again, in another medical marijuana case, that there is no right to use marijuana in Colorado.

- One tip for employers in both Colorado and Washington: If you wish to prohibit marijuana, confirm that your policies make that clear. Employers may wish to re-publish their policies, if they'd like to remind their workers that, even after these new measures, marijuana remains prohibited in the workplace.

Employers should brace for a number of lawsuits trying to expand these laws into something the courts have already said they're not: a right to have marijuana in one's system at work...

Employers that would like to take a liberal approach to permitting marijuana usage, and not testing for it, should consult with counsel. They are likely to face some difficult challenges:
 
1. First, marijuana can impair an individual. The passage of these new laws doesn’t make marijuana safer. For safety reasons alone, an employer may have a difficult time proving it is maintaining a workplace free of known hazards if it once prohibited marijuana and now wishes to permit it. It could be quite difficult to show the presence of marijuana didn't cause an impairment. Unlike alcohol, marijuana stays in a user's body for long periods, and it's difficult to gauge the level of impairment simply from the amount present at any time.

2. A Colorado or Washington employer looking to be tolerant of marijuana will need to be sure its lab will respect its wish not to test for marijuana. The default panel for a drug screen includes testing for marijuana (THC), as well as cocaine, phyncyclidine (PCP), opiates (cocaine, heroin and morphine) and amphetamine, to include methamphetamine.

3. Companies doing federal work or otherwise obligated to have a zero-tolerance drug policy may be prohibited from adopting a lax attitude towards marijuana use.
 
This isn't to suggest that employers in Colorado and Washington should expect a smooth ride when these laws take effect. Rather, they should brace for a number of lawsuits trying to expand these laws into something the courts have already said they're not: a right to have marijuana in one's system at work.

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[Bill C Berger is a shareholder at Brownstein Hyatt Farber Schreck. His practice emphasizes the representation of management and employers in labor and employment law matters, including both preventive counseling and litigation.

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