On November 6, Coloradoans voted to legalize the possession of up to one ounce of marijuana and use of marijuana in private places. Governor Hickenlooper signed the amendment yesterday, making the recreational use of marijuana legal in Colorado. The use, possession, and cultivation of marijuana are still, however, violations of the federal Controlled Substances Act. Colorado employers are left to try and figure out what this means for them.
Employers should know that Amendment 64 states, “Nothing in this section is intended to require an employer to permit or 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.” The exact meaning of this language will become clear over the coming weeks and months, but employers need never tolerate drug impairment in the workplace.
Governor Hickenlooper and Colorado Attorney General John Suthers have communicated with U.S. Attorney General Eric Holder to gauge what the federal government will do in response to the passage of Amendment 64. Although Governor Hickenlooper has not yet heard from Attorney General Holder (as far as we know), Attorney General Holder was very clear in 2010 when California was considering similar legislation that the federal government would still “vigorously enforce” the federal law. In contrast to 2010, Attorney General Holder did not articulate the federal government’s position during the election cycle of 2012.
On November 30, a group of 20 business owners in Colorado wrote a letter to the U.S. Attorney General requesting clarification of federal government’s position and encouraging enforcement of the Controlled Substance Act. Again, the business group has not received the requested guidance (as far as we know).
And, as expected, the U.S. Department of Transportation issued a bulletin on December 3 clarifying its position on the “recreational” use of marijuana. For those covered employees, such as pilots, school bus drivers, truck drivers, train engineers, subway operators, aircraft maintenance personnel, transit fire‐armed security personnel, ship captains, and pipeline emergency response personnel, “We [the DOT] want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation—49 CFR Part 40—does not authorize the use of Schedule I drugs, including marijuana, for any reason.” Neither the medical use of marijuana nor the recreational use of marijuana will be accepted by a Medical Review Officer as an acceptable reason for the presence of the marijuana metabolites in an individual’s system.
MSEC will do everything it can to keep you informed on this topic as new developments occur.