How Does the Legalization
of Recreational and Medical
Marijuana Affect Your
Employment Policies?
Vance O. Knapp, Esq., Partner Labor and
Employment Department, Sherman & Howard
L.L.C. 633 17th Street Ste. 3000, Denver, CO
80202 (303) 299-8162
vknapp@shermanhoward.com
www.shermanhoward.com
© 2011 Sherman & Howard L.L.C.
BACKGROUND
• 23 states and the District of Columbia have
legalized possession and use of limited
amounts of marijuana for medical purposes.
• Colorado and Washington state have also
legalized limited amounts of marijuana for
recreational purposes.
© 2011 Sherman & Howard L.L.C.
BACKGROUND
• In Colorado, Amendment 64 Legalized
Recreational Marijuana-– Marijuana to be obtained as easily as alcohol.
– Allows individuals 21 or over to cultivate, use and
possess limited amounts of marijuana, without
having to be certified as having a serious illness or
debilitating health condition.
© 2011 Sherman & Howard L.L.C.
Marijuana is Still Illegal Under
Federal Law or Is It?
• “We’ve got bigger fish to fry,” President
Obama in response to a question concerning
prosecution of marijuana users by Barbara
Walters on ABC’s “Good Morning America” on
December 14, 2012.
© 2011 Sherman & Howard L.L.C.
Marijuana is Still Illegal Under
Federal Law or Is It?
• On August 29, 2013, The U.S. Department of
Justice issued a memorandum to all U.S.
Attorneys updating its Guidance on marijuana
enforcement.
– The DOJ is deferring its right to challenge
legalization efforts at this time.
© 2011 Sherman & Howard L.L.C.
Bipartisan Congressional Support
• Representatives Dianna DeGette (D) and Mike
Coffman (R), have introduced the “Respect
States’ and Citizens’ Rights Act,” in Congress.
– The bill is designed to exempt states from the
federal Controlled Substances Act provision on
marijuana—this bill is still pending.
© 2011 Sherman & Howard L.L.C.
Drug Free Workplace Act
• Applies to any organization that receives a
Federal contract of at least $100,000 to
establish a drug-free workplace.
– It also requires that all organizations receiving
Federal grants of any size establish and maintain
such a policy.
– Does not require employers to drug test
employees.
© 2011 Sherman & Howard L.L.C.
ADA Issues Involving Marijuana
• ADA does not require employers to
accommodate the use of marijuana.
– However, if an employee enters a substance abuse
program, employers have to accommodate the
employees participation.
• ADA does not consider drug testing to be a
medical examination.
© 2011 Sherman & Howard L.L.C.
Accommodation of Medical
Marijuana
• Beware, some state anti-discrimination laws
do not address marijuana use as an
accommodation.
– Plaintiff’s counsel could argue in states that have
legalized medical marijuana, that under state antidiscrimination laws, an employee’s use of
marijuana to ameliorate the effects of a disability
constitutes a reasonable accommodation.
© 2011 Sherman & Howard L.L.C.
Federal Status
• Bottom Line—marijuana remains classified as
a Schedule I narcotic under the Federal CSA
– Marijuana cultivation, distribution, possession and
use are still criminal acts under federal law.
– Marijuana is in the same category as Cocaine,
Heroin, LSD and Ecstasy.
© 2011 Sherman & Howard L.L.C.
Can I Regulate My Employees’ Use
of Marijuana?
• YES!
– At a minimum, employers in all 50 states and the
District of Columbia can regulate an employee’s
use of marijuana by:
• Prohibiting marijuana possession and use at work;
and
• Reporting to work impaired or under the influence of
marijuana.
© 2011 Sherman & Howard L.L.C.
Can I Regulate My Employees’ Use
of Marijuana?
• In Colorado both Amendment 20 (medical
marijuana) and Amendment 64 (recreational
marijuana) provide that employers do not have
to accommodate employees use of marijuana.
© 2011 Sherman & Howard L.L.C.
Can I Regulate My Employees’ Use
of Marijuana?
• Benoir v. Industrial Claims Appeals Office
– Employee can be denied unemployment for testing
positive for marijuana in violation of employer’s
zero tolerance drug policy.
– Medical Marijuana Amendment only provides an
affirmative defense to criminal prosecution.
© 2011 Sherman & Howard L.L.C.
Can I Regulate My Employees’ Use
of Marijuana?
• Employers may restrict the use of marijuana
by employees; but can employers prohibit,
the lawful off-duty and off-premises use.
– Does having a trace amount of THC in your body
constitute use or possession at work?
– When is an employee “impaired” or “under the
influence” by THC?
– Combating employees’ perceptions concerning
their “constitutional right” to use marijuana v. reality.
© 2011 Sherman & Howard L.L.C.
Can I Regulate My Employees’ Use
of Marijuana?
• Colorado’s Lawful Off-Duty Activities Statute,
C.R.S. §24-34-402.5, makes it a discriminatory
or unfair employment practice to terminate an
employee who is engaged in lawful off-duty,
off-premises activities.
• Coats v. Dish Network, the Colorado Court of
Appeals held that medical marijuana use is not lawful
for purposes of Colorado’s Law Off-Duty Activities
Statute.
© 2011 Sherman & Howard L.L.C.
Can I Regulate My Employees’ Use
of Marijuana?
• The Colorado state legislature has passed a
driving under the influence of marijuana bill.
– This bill sets the threshold for impairment at 5
nanograms, and allows a defendant to argue at
trial that they were not impaired.
© 2011 Sherman & Howard L.L.C.
Policy Options
No Testing
v.
Reasonable Suspicion/Post Accident Testing
v.
Random Testing
© 2011 Sherman & Howard L.L.C.
Policy Options
• Beware local drug testing ordinances.
• Is there a threshold for impairment?
© 2011 Sherman & Howard L.L.C.
Can I Still Have a Zero-Tolerance
Drug Policy?
• Yes, but--“Damn lawyers! There is always a
but!”
– Marijuana is still illegal under federal law. You could
have a zero-tolerance policy for positive test results
and the courts would probably uphold your right to
terminate an employee for a positive test.
– However, the expense to defend a wrongful
termination suit through the appeal process could
easily cost $300,000 in legal fees and costs.
© 2011 Sherman & Howard L.L.C.
How Should I Address Marijuana
Use in My Employment Policies?
• Review your substance abuse policy to ensure
its restrictions concerning marijuana use are
consistent with the restrictions contained your
respective jurisdiction.
– E.g., “Acme Company does not permit the
possession, distribution or use of illegal substances
(including medical and recreational marijuana).”
© 2011 Sherman & Howard L.L.C.
How Should I Address Marijuana
Use in My Employment Policies?
• Review your job descriptions—can you make
a case for all employees having safety
sensitive positions? If not, why?
• Treat similarly-situated employees the same.
© 2011 Sherman & Howard L.L.C.
How Should I Address Marijuana
Use in My Employment Policies?
• The ADA does not require employers to
accommodate the use of marijuana to mitigate
the effects of a disability.
– However, some state anti-discrimination statutes
may require accommodation of medical marijuana
use.
• Educate your employees and guests about
your marijuana possession and use policies.
© 2011 Sherman & Howard L.L.C.