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Colorado Voters Legalize Recreational Marijuana Use Creating A Host of Potential Employment Issues

On Election Day, a majority of Colorado voters voted in favor of Amendment 64 to the Colorado Constitution which legalizes the recreational possession and use of marijuana. The law will go into effect as soon as the election is certified–which should occur by the end of November. Under the Amendment, anyone older than 21 can possess less than an ounce of marijuana and can grow up to six marijuana plants, three of which can be flowering at a time, in a private, enclosed and secure facility (which can include a home or apartment). Public use of marijuana is prohibited. The law mandates that the state adopt a framework for a regulatory procedure by July 2013 to allow for businesses to sell marijuana for recreational use.

Several important issues are already being confronted by Colorado employers as they await certification of the election. Some of these issues have answers readily available; some answers can be provided by way of an educated guess; and others will have to await further development of the law through regulations and litigation. Some of the issues that are being digested and discussed are as follows:

  • Do Employers have to allow marijuana use in the workplace? Clearly the answer here is “no.” Amendment 64 itself states that the law is not intended to require an employer to permit the use, possession or distribution of marijuana in the workplace.
  • Do Employers have to ignore prior marijuana related convictions that appear in an applicant’s criminal history? The answer here is “no.” Amendment 64 has no retroactive application. Therefore, if someone was previously convicted on a marijuana charge, the conviction stays on the criminal record and an employer would be safe in making employment decisions based on any such conviction that shows up in a background check.
  • Can Employers still have anti-drug policies that include marijuana? The short answer is “yes.” Amendment 64 states that it is not intended to affect the ability of employers to have policies restricting the use of marijuana by employees. However, the issue becomes more complicated in light of Colorado’s legal off-duty activities statute (C.R.S. §24-34-402.5), which prohibits employers from taking action against an employee for engaging in lawful activity during non-work hours. The question thus becomes, if an employee or prospective employee uses marijuana while off-duty and comes to work with it in his/her system, but not impaired, can the employer enforce its anti-drug policy in such instance and discipline the employee? Proponents of Amendment 64 would certainly say no based on the fact that the marijuana use was legal and off-duty. Opponents would likely fall back on the fact that marijuana use is still illegal under Federal law (see next bullet point) and thus still a violation of the employer’s policy. This will ultimately be a matter that will have to be decided in litigation and will need to be watched closely as it will be significant in resolving a whole host of employment issues, including: a) Whether a candidate for employment can be denied employment for testing positive for marijuana?; b) How will the issue of work-place impairment from off-duty marijuana use be judged?; and c) Whether an employee terminated for testing positive for marijuana (the termination being premised on a violation of federal law) may still obtain State unemployment benefits and/or worker’s compensation benefits?
  • How does the passage of Amendment 64 interact with Federal Law? Amendment 64 and Federal law directly clash. That is, under the Federal Controlled Substances Act, marijuana is a Schedule 1 controlled substance and thus illegal. What is uncertain at this point in time is how offended the Federal Government will be by the passage of a state law that directly contradicts Federal law? The U.S. Department of Justice could certainly bring an action to challenge Amendment 64 on the legal principle of federalism (i.e. a state cannot enact a law in direct contravention to a federal law). If the Department chooses not to do this (or if by chance it did so and somehow lost), it must decide how vigorously it will enforce the Controlled Substances Act in Colorado. Most law enforcement experts agree that the Feds do not have nearly enough resources to actively enforce the law and may decide to look the other way. So far, the U.S. Department of Justice has been entirely noncommittal as to the stance and/or actions it might take regarding Amendment 64.