Yesterday, the Governor of Colorado officially made Amendment 64 part of Colorado's Constitution. While portions of the law pertaining to the sale of marijuana and the adoption of standards governing impairment will not go into effect until the adoption of regulations in 2013, as of yesterday, marijuana possession and use is now legal as a matter of Colorado law.
Possession and use of the drug is still, of course, illegal under federal law, and Amendment 64 does not require employers to allow use of marijuana in the workplace. However, because off-duty use is now legal under State law, Colorado employers who do drug testing of their employees or candidates for employment must decide if they now want to make an exception to their drug testing policy for marijuana or if they want to continue to list it as a prohibited drug. If they choose to continue to prohibit it, employers should immediately revisit the language of their policies to make clear reference to federal law. This will not guarantee that action taken for violation of the policy in the form of a positive test for marijuana will not be deemed a violation of Colorado's statute that protects employees from being disciplined for legal off-duty activities, but it will certainly help if the employer ever needs to defend its actions. Such defense would be based on the argument that the off-duty use was illegal under federal law and therefore not protected under the State statute. That issue is one that will likely need to be decided by Colorado's Supreme Court before there is any clear answer.
Because of the potential pitfalls and the uncertainty in how the law will be enforced and interpreted, employers should consult legal counsel before taking any action against an employee or candidate for employment who tests positive for marijuana.