Employers are justifiably concerned about the passage of Colorado Amendment 64, “legalizing” marijuana. To understand its impact on employers, it is important to consider how Amendment 64 relates to medical marijuana in Colorado.
Colorado’s medical marijuana law has been in effect since 2001. That law states that “nothing … shall require any employer to accommodate the medical use of marijuana in any workplace.” Similarly, Amendment 64 is not “intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace.”
Relying on a series of cases in other jurisdictions, as well as federal regulations pertaining to the Americans with Disabilities Act, Colorado employers have been able to enforce their drug policies against employees testing positive for marijuana—medical or otherwise—even without direct evidence of on-the-job use or impairment. This is because Colorado’s medical marijuana law only decriminalized marijuana for those registered with the state; it did not legalize it.
The distinction between decriminalization and legalization is critical, because Colorado also has a legal off-duty activities law (“CLODA”) that protects employees from being fired for engaging in legal conduct while off-duty.
With the passage of Amendment 64, it is foreseeable that an employee terminated for marijuana use will argue that CLODA protects them from discharge unless an employer can prove they used—or were impaired by—marijuana in the workplace. (In fact, at least one case, Coats v. DISH Network(2012CA0595), arguing that medical marijuana use is protected by CLODA, has already been filed.)
The problem is compounded by the fact that neither urine nor saliva testing are good indicators of present marijuana impairment.
Employers should take heart in the fact that there are recent court decisions in their favor. For example, in Haeberle v. Blue Sky Care Connection, LLC(2011CV709), a Colorado State District Court determined that contracts for the sale of marijuana are against public policy and therefore void, because marijuana remains a Schedule I controlled substance under federal law. It is likely that a similar argument will be made on behalf of employers; i.e., that CLODA doesn’t protect employees against discharge for conduct that is legal under state law but illegal under federal law.
CLODA also provides exceptions when a termination is “necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.” These exceptions may play a major role once a lawsuit is brought.
Colorado Attorney General John Suthers has called on the federal government to “make known its intentions regarding prosecution of activities sanctioned by Amendment 64 (particularly large wholesale grow operations) as soon as possible in order to assist state regulators and the citizens of Colorado in making decisions about the implementation of Amendment 64.” Since the new law may not go into effect until sometime in December, and since the federal government could intervene in the meantime, employers are advised to do nothing differently for the time being. Also, keep in mind that Amendment 64’s regulations won’t be in effect for some time, and if properly drafted, they could provide adequate safeguards to Colorado’s businesses.
MSEC will continue to monitor and advise on this issue as more information becomes available.