The states of Colorado and Washington made drug-law history on Election Day, Nov. 6, 2012, when voters approved measures to legalize and regulate the production, possession and distribution of recreational marijuana for individuals age 21 and older.
The new laws, which allow each state to administer the sale and distribution of marijuana in a manner similar to current state laws on the use and sale of alcohol, are unique in the nation.
Washington and Colorado employers are wondering whether any workplace implications have been created by the passage of the measures, which counter federal drug-control policy. Employees’ or applicants’ use of marijuana may raise safety concerns and motivate employers to re-examine drug- and alcohol-testing policies.
“The simple answer is [the new law] does not change an employer’s rights,” said Jim Shore, a partner in law firm Stoel Rives’ Seattle office. “Employers can still enforce the zero-tolerance policies and other drug-testing policies they have now,” Shore told SHRM Online.
“While the new law’s passage may be the social vanguard, marijuana remains as illegal today under federal law as it was before,” he said.
Conflict with Federal Law
Federal law prohibits the use of marijuana, even for medicinal purposes.
Medical marijuana laws currently exist in 17 states and the District of Columbia. “It is my experience that most employers in states with medical marijuana laws bar employees from using it during the workday and from bringing it into the workplace,” Shore said. “And it’s pretty clear that the courts have been very reluctant to rule in such a way that it would force an employer to condone a violation of federal law.”
Under the Occupational Safety and Health Act’s general duty clause, employers must maintain safe workplaces. Although the Occupational Safety and Health Administration has no specific regulations addressing substance abuse on the job, it has on several occasions issued citations to employers who, the agency found, had workers with illegal drugs in their systems at the time workplace accidents occurred.
Colorado Attorney General John Suthers cautioned in a statement released the day after the election that “Coloradans should not expect to see successful legal challenges to the ability of the federal government to enforce its marijuana laws in Colorado.” Both states’ measures are set to go into effect Dec. 6, 2012, with regulations expected sometime in 2013. “That assumes the federal government does not challenge the new law,” Shore said. “And that is a major assumption.”
Colorado law does prohibit employers from terminating employees for engaging in “any lawful activity off the premises of the employer during nonworking hours.” And Colorado’s new marijuana statute states, “Nothing … is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace,” and disclaims any intent to “affect the ability of employers to have policies restricting the use of marijuana by employees.” The new law also stated that it will not affect the right of an employer that occupies, owns or controls a property to prohibit the use, possession or transfer of marijuana on that property. Nor does the law allow individuals to drive while impaired by or under the influence of marijuana, or excuse them from criminal penalties if they do so.
Similar concepts apply to the new Washington state marijuana legalization law, Shore said. “Marijuana still remains illegal for all purposes under the federal Controlled Substances Act. Employers simply do not have to condone illegal drug use, possession or influence at their workplace,” he said.
Communicating with Employees
Despite the dramatic headlines, a close look at the measures approved reveals that it is unlikely that employers in the affected states will need to take any swift action to amend their drug-free workplace policies or their drug-testing programs on account of these laws, Shore said. “But it is still a good time for employers to re-examine those policies and make sure that certain steps are addressed and safeguards taken to minimize potential challenges and confusion.”
Employees may understandably be confused as to whether their use of marijuana in accordance with these state initiatives is acceptable to their employer, and employers should be prepared to answer questions from employees and applicants. “That may be the biggest issue right now,” Shore said, “employees who hear from the media that marijuana use is ‘legal’ and do not understand the limitations of the Washington state law, let alone the continued illegality under federal law or their employer’s workplace prohibitions.”
Employers should consider the following issues in reviewing existing substance abuse policies:
- 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.
- Communicate to your employees about your expectations concerning your substance abuse policies.
“Employers should review their policies to make sure that illegal drug use under both state and federal law is prohibited, and that their policies prohibit any detectable amount of illegal drugs as opposed to an ‘under the influence’ standard,” Shore said. “Employers should also ensure that their human resources personnel know how to handle marijuana issues as they arise.”
Roy Maurer is an online editor/manager for SHRM.
Colo.: Employers’ Anti-Drug Policies Remain Enforceable Under Marijuana Regulation Act, Legal Issues, November 2012
Wash.: Implications of Marijuana Legalization for Employers, Legal Issues, November 2012
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