Implications for Employers in Marijuana Amendment
Amendment 64, the Colorado marijuana initiative, was passed by voters in November but it’ll be months before employers can expect to get a clear idea of what it’ll mean to their job sites.
With its passage, Colorado businesses are now left to contend with the consequences, intended and unintended — consequences that create many more questions than answers and, invariably, can only be answered through litigation, legislative action and federal intervention.
As employment law experts can tell you, Colorado already had a unique statutory protection for individuals' activities while not on the job. The Legal Off-Duty Activities Statute provides that "it shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee engaging in any lawful activity off the premises of the employer during nonworking hours."
Colorado's Task Force on the Implementation of Amendment 64 will be spending the next couple of months coming up with recommendations on how all the provisions of Amendment 64 should be addressed.
As crafted, the amendment legalizes limited personal use, possession and home-growing of marijuana for adults 21 and older.
Among other items, the task force will be tackling the impact of Amendment 64 on employers and employees and the state economy.
Until these questions are clarified, Bill C. Berger, a shareholder at Brownstein Hyatt Farber Schreck LLC, has one important tip for employers:
If you want to prohibit marijuana in the workplace, confirm that your policies make that clear.
You can also remind employees that marijuana remains prohibited even after Amendment 64 was passed. In fact, that’s probably one of the smarter ways to ensure your workers’ compensation premiums don’t skyrocket.
Berger points out that any employer who doesn’t test for marijuana will face some difficult challenges.
For safety reasons alone, an employer may have a difficult time proving it’s maintaining a workplace free of known hazards if it once prohibited marijuana and now wishes to permit it.
Also, companies doing federal work are obligated to have a zero-tolerance drug policy and, as such, would be prohibited from adopting a lax attitude toward marijuana use.
Despite these common-sense readings of the measure, experts say employers should expect to see lawsuits trying to expand Amendment 64 into something it’s not: A right to have marijuana in one’s system at work.