Sale of Recreational Marijuana Doesn’t Change Status Quo for Colorado Employers

With the recreational sale of marijuana now legal under Colorado state law, it is important to understand that nothing has changed for employers from a legal standpoint, and that employers may continue to have and enforce their drug policies just as they could before January 1, 2014.

Colorado’s Amendment 64, Use and Regulation of Marijuana, contains the following language: “Nothing in this section is intended to require an employer to permit or accommodate the use … of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.” Moreover, a Colorado Court of Appeals case from April 2013 affirmed that off-duty marijuana smoking is not protected under Colorado’s lawful off-duty activities law. Coats v. Dish Network, L.L.C. (Colo. Ct. App. 2013). While Mr. Coats has sought review by the Colorado Supreme Court, employers currently retain the authority to take whatever disciplinary action they wish in response to a positive drug-test result or on-the-job impairment.

MSEC recognizes that the status of marijuana is in flux and that its legal status could change as a result of a change in state law, removal of marijuana from Schedule I of the federal Controlled Substances Act, or even as a result of advances in drug-testing science. MSEC will continue to apprise its members of any change that may affect the employer/employee relationship.