One Year After Legal Pot, Employment Law Remains Hazy

Recreational marijuana has now been legal in Colorado for over a year. While many of the questions regarding the implementation of legal pot have been answered by now, the topic of marijuana use and employment law still remains a complicated subject without definitive answers. This is because marijuana is still a Class I controlled substance at the federal level, and federal employees (including those who simply work for organizations that receive federal funding) are strictly prohibited from using marijuana for recreational and medical purposes.

The law is quite clear that employers can fire people who show up to work under the influence of marijuana. It’s important to note that Colorado case law around medical marijuana suggests employers can also fire an employee for off-the-clock marijuana use, even if there’s no allegation that the employee was impaired on the job. 1

Photo credit:  Kathryn Decker

Photo credit: Kathryn Decker

In October, the Colorado Supreme Court heard arguments from Coats v. Dish Network, a case with vast implications for employment law and marijuana use. Brandon Coats, the plaintiff, is suing Dish Network for firing him in 2010 from his job as a telephone operator after he tested positive for marijuana. Coats has a prescription for medical marijuana to treat the symptoms he suffers as a result of a car accident that left him unable to walk as a teenager. Dish Network stated in court that Coats’ firing is in line with a policy that complies with federal law making marijuana illegal, and lower courts in Colorado have thus far sided with the company.

There is still much to be determined when it comes to employment law and marijuana use at both the state and federal levels. Colorado Attorney General John Suthers says it will be “at least a couple of years” before all the questions surrounding recreational marijuana are sorted out. Allen St. Pierre, the head of the National Organization for the Reform of Marijuana Legislature (NORML), predicts it could take as long as a decade. 2

With so much left to be determined, districts should take the time to evaluate and update their own drug policies and clearly communicate them to employees. Even if you decide that your policies don’t need to be updated, it’s always a good idea to make sure your employees are aware of and in compliance with existing policies.

Lara Makinen, who is on the board of the Colorado chapter of the Society for Human Resources Management, says most employers have drug-free workplace policies that were written in response to the federal Drug Free Workplace Act of 1988. Makinen says only a very small portion of employers have relaxed their drug policies since the legalization of marijuana in Colorado, and in fact, many employers have actually tightened their drug testing policies. 3

A survey by the Mountain States Employers Council published in the Denver Post backs up Makinen’s claim. One in five Colorado employers reported that they have implemented more stringent drug-screening policies since the passage of Amendment 64 in 2012, while only two percent of responding companies said they have relaxed their screening policies.

Employees may understandably be confused as to whether their use of marijuana that adheres to state law is acceptable to their employer, and employers should be prepared to answer questions from employees and applicants about their drug policies. 4

No matter what individual states may decide, marijuana use at work is still disallowed under the Occupational Safety and Health Act, which mandates safe and effective workplaces. Additionally, the Americans with Disabilities Act has not been changed to allow for medical marijuana. 5

Districts should consider the impacts of marijuana legalization and design their workplace drug policy according to Best Practice safety standards. Marijuana is known to impair judgment and decrease reaction time, so district employees should be drug-free at all times while at work. Employees who operate machinery, drive district vehicles, or perform tasks which require a high level of concentration should especially remain drug free.

Tips for employers in reviewing existing substance abuse policies: 6

  • If your company is a direct recipient of federal funds and has occupations that are safety-sensitive, your company is required to follow the Drug-Free Workplace Act of 1988, which requires federal contractors and federal grantees to agree that they will provide drug-free workplaces as a precondition of receiving a contract or grant from a federal agency.
  • The Americans with Disabilities Act does not require employers to accommodate the use of marijuana to mitigate the effects of a disability.
  • Treat similarly situated employees consistently under your company’s substance abuse policy.
  • Do communicate to your employees about your expectations concerning your substance abuse policies.
  • Do review your drug-free workplace policy and substance abuse testing program with your legal counsel.
  • Do apply your drug testing policies fairly and consistently.
  • Do consider the health and safety of all of your workers in the application of your drug screening policy.
  • Don’t stop enforcing your drug policy solely because of state marijuana laws.
  • Don’t terminate or disqualify someone without careful consideration and adherence to policies, particularly in light of medicinal or “legal” recreational use.


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