Colorado: Employers Face A Marijuana Quandary

January 25, 2010 – When it comes to medical marijuana, Colorado employers are caught between conflicting laws.

The state’s medical-marijuana amendment, passed by voters in 2000, says that employers don’t have to accommodate medical-marijuana use in the workplace.
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But another Colorado law, enacted a few years ago to protect cigarette smokers, prohibits firing employees for engaging in legal activities during nonworking hours.

That suggests that people who smoke medical marijuana before arriving at work could be protected under state law, whether their employers like it or not. And with roughly 30,000 Coloradans now estimated to be qualified to use medical marijuana, employers are growing increasingly uneasy.

It’s the kind of quandary employers in other states are have faced as well, as medical marijuana gains increasing acceptance.

“No cases have been litigated yet in Colorado, so we’re not sure how a court might rule or how a jury might find,” said Danielle Urban, an attorney with Fisher & Phillips LLP, a Denver-based employment law firm.

State courts in California, Washington, and Oregon have handled cases involving employees that were terminated for medical-marijuana use, and they all have sided with employers, she said.

However, none of those states had a law similar to Colorado’s “Unlawful prohibition of legal activities as a condition of employment” statute.

“We’re advising employers not to outright fire someone, although there’s case law in other states, including California—which is pretty liberal—saying that you can do that,” Urban said. “We’re just advising them to try to figure out if there’s some way you can accommodate the employee without firing them or agreeing that they can use medical marijuana.”

For instance, employers could offer a leave of absence for the duration of the employee’s medical-marijuana treatment, Urban said.

With Colorado’s Amendment 20, “It’s the phrase ‘in the workplace’ that’s troublesome,” said Dean Harris, a staff attorney for the Mountain States Employers Council Inc. in Denver. “I believe it is connected with the workplace so long as there is a positive drug test or there is some indication of intoxication while the person is at work. That brings it to the workplace.”

But other lawyers say it may be more complicated than that.

“An employer can always send an employee home if they’re under the influence,” said Vance Knapp, an employment attorney at Sherman & Howard LLC in Denver. “The tricky issue becomes what happens if an employer does a random drug test and an employee tests positive, but says ‘I’m not intoxicated; I’m using this on my own time to treat my chronic disease.’”

Unlike alcohol, elements of marijuana use can be detected for days or even weeks, making it difficult to determine how recently the drug was used.

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Colorado Employers Face Quandary On Medical Marijuana
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“I’m a former prosecutor, and I can tell you that sometimes the trace elements of marijuana can be in a person’s bloodstream or hair follicles for three weeks, even after smoking one marijuana cigarette,” Knapp said. “It’s not like alcohol, where it burns off after a good night’s sleep and drinking some water.”

Under Occupational Safety and Health Administration rules, employers have a duty to provide a safe workplace, and an employee whose judgment is impaired by marijuana arguably could create a physical risk to others. The U.S. Department of Transportation declared in October that transportation workers—including pilots, aircraft maintenance workers, truck drivers, school bus drivers, train engineers, subway operators, and ship captains—aren’t allowed to use marijuana under any circumstances, even in states that allow its medical use.

But other types of workers could argue that their pot smoking isn’t hurting anyone else.

Employers would be able to avoid the dilemma by banning all drugs that are illegal under both federal and state law, as marijuana remains illegal under federal law and can’t be legalized by state statute, Knapp said. “What I’ve advised employers to do is make sure that their employee handbooks prohibit all drugs that are illegal under ‘federal and/or state law.’”

“The purpose of Amendment 20 wasn’t to legalize marijuana,” Harris said. “It merely provides a defense to criminal prosecution for the use or possession of medical marijuana. So the simplest answer for employers is that marijuana use and possession still isn’t legal.

“The U.S. Supreme Court made it very clear in 2005, in Raich v. Gonzales, that marijuana is still an illegal drug under federal law, and that federal law trumps state law in this area.”

Although Colorado’s medical-marijuana law has been on the books for years, it wasn’t a big issue until last year, when U.S. Attorney General Eric Holder announced that the Justice Department no longer would raid state-approved medical-marijuana dispensaries. Since then, the number of dispensaries in Colorado has mushroomed; there are now more than 300 in Denver alone.

Meanwhile, the Colorado Department of Public Health and Environment estimated in mid-December that approximately 29,000 to 30,000 Coloradans had submitted the paperwork necessary to be placed on the state’s medical-marijuana registry. State health officials, facing on average 600 new applications every day, haven’t been able to process them fast enough, said department spokesman Mark Salley.

As of September 30, 2009—the latest data available—17,356 people in Colorado held valid registry cards. Of those, 57 percent lived in the seven-county Denver metro area.

The state legislature is expected to take up at least two bills this session aimed at regulating the industry more closely. But so far there is no known legislation in the works that would clarify Colorado employers’ rights and responsibilities, local lawyers said.

And employers are increasingly worried. Harris, of the MSEC, said he was fielding several calls per day on the issue. The MSEC presented a January 21 webinar on the subject that proved to be its most popular Internet seminar ever, drawing 180 members.

“Employers want to do the right thing, but there are some things we just can’t answer from the law,” Harris said. “What happens when you get the 10-year employee that, out of nowhere, comes up with a positive test? Or when you get the highly qualified applicant that you look at and say, ‘Boy, this is a really heartbreaking story; we know that they have legitimate medical needs, but we have a zero-tolerance drug policy?’”

by Renee McGaw. Source.

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