Colorado's Marijuana "Legalization" Amendment Task Force OKs Recommendation to Permit Employers to Terminate Employees for Off-Duty Marijuana Use
By Chris Leh
On February 5, 2013, a task force convened by Colorado’s governor to address issues arising out of Amendment 64, a state constitutional amendment that purports to legalize the recreational use of marijuana by adults in Colorado, recommended that “employers may maintain, create new, or modify existing policies in response to the passage” of the law. The recommendation is a preliminary signal that even as the state liberalizes its marijuana laws concerning medical and recreational use, employers still may regulate all marijuana use, even off-duty and off-premises use, by their employees.
In 2000, Colorado voters approved Amendment 20, which created a legal framework regarding medical marijuana. The law did not purport to legalize the drug. But those who suffered from “debilitating medical conditions” and whose physicians stated that they “might benefit from the medical use of marijuana” could obtain state registry cards that permit them to possess, grow, and use small amounts of the drug for medicinal purposes. Amendment 20 immunized users and their caregivers from prosecution for minor state law marijuana crimes. It contained a single brief reference to employment issues: “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” During the 12 years since Amendment 20’s passage, Colorado employers have continued to create and enforce zero-tolerance policies and discipline employees for testing positive for marijuana, whether they were medical marijuana patients or not. With the exception of a case in which the drug test of a medical marijuana patient failed to pass statutory muster to support disqualification for unemployment benefits, the Colorado Court of Appeals has supported this approach.Continue Reading...