Legalized Marijuana in Colorado Creates Headaches for Employers

By Vance Knapp

We’ve just seen the celebration in Washington state as its new law legalizing marijuana took effect.  In November, Colorado voters also approved a state constitutional amendment (Amendment 64) legalizing the possession and use of small amounts of marijuana by individuals 21 or over.  The Colorado law takes effect January 5, 2013, and we can expect similar hazy scenes of celebration.

Of course, marijuana is still illegal under federal law, but the new amendment affects employers’ workplace authority over marijuana use as follows:  (1) employers are not required to permit or to accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace, and employers may have policies restricting the use of marijuana by employees; (2) employers may prohibit the possession, consumption, use, display, transfer, distribution, sale, transportation or growing of marijuana on their property.

Employers are still struggling with workplace issues involving marijuana such as: (1) Does “use” include any positive result on a drug screen or is “use” limited to employees who are impaired on the job?  (2) May employers regulate the off-duty, off-premises use of medical marijuana?   (3) Do employers have to change their zero tolerance drug policies?

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