I’m in Colorado and as I understand it, the CO Constitution permitting possession and use of marijuana for medical purposes does not mean that employees can use at work or that they can come to work impaired by lawful use.  A drug testing policy still stands and if an employee were to test positive he or she could still be disciplined or terminated for violating your requirements.  Those are the main issues employers are asking about, but I am sure that some of you can think of other issues I should be aware of.

Linda Konstan

If the drug testing is part of a “Regulated” drug testing policy such as DOT, FAA, or official “drug free workplace” policy, nothing has changed. 

Businesses have the right to create drug and alcohol policies at their own digression if they are not in a regulated industry or for the employees of the company that are not regulated. 

One of the reasons that companies will b very slow to change their policies, is that treating some employees in some states to different standards would be an invitation to a legal dispute.  Many will continue to test as they do in other states and they have the right to do so. 

Aaron Lintz
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Navicus - Client Development

If your employee has a prescription to use it, will your insurance cover it?  Most do not, but I did read an article about a company in calif. that did pay for it, they saved money as it was cheaper then other “Legal” drugs that were prescribed.

Federal law still applies and if you are subject to drug testing for like commercial drivers or nuke specialist, employees have no protection.

As a management-side labor & employment attorney, I would caution HR departments to be very careful in this area.  Use of marijuana for medical purposes (i.e., at the direction of a health care professional in states that allow it) is arguably no different than having an employee taking a prescription for other lawful drug.  If you allow employees to take their prescription drugs at work (which drugs often include a list of detrimental side effects), how are you going to justify denying an employee the right use use their “prescription” for medical marijuana?

In addition, if you discipline or terminate an employee who tests positive for marijuana, but who uses it for a lawful medical purpose, you may run afoul of the ADA.  Permitting employees to use medical marijuana for debilitating illnesses (such as cancer) may amount to a “reasonable accommodation” under the ADA.  But this scenario could only happen in states that lawfully allow for medical marijuana usage.

Kevin
Washington, D.C.

It is my understanding that Colorado has a unique regulatory scheme that may impact this issue, one in its state Constitution and one statutory.  One of those specifies that employers cannot legally penalize employees for off-duty conduct that is legal under state law, which calls into question any proposed action based on a positive drug test for legally-prescribed medical marijuana, since it stays in the system for up to 30 days after use.  I honestly cannot remember the other one, just recall that there were two, based on reading a recent article.  If I come back across the article, I will post more specific information.  The take-away is that—even after you have the issue thoroughly legally briefed—it is unclear how a Colorado court will handle this issue.

http://www.sah.com/NewsAndEvents/View/E10C2150-5056-9125-63D4E21D5DA02AF9/

Kevin -- D.C. metro - 28 January 2010 05:03 PM

As a management-side labor & employment attorney, I would caution HR departments to be very careful in this area.  Use of marijuana for medical purposes (i.e., at the direction of a health care professional in states that allow it) is arguably no different than having an employee taking a prescription for other lawful drug.  If you allow employees to take their prescription drugs at work (which drugs often include a list of detrimental side effects), how are you going to justify denying an employee the right use use their “prescription” for medical marijuana?

In addition, if you discipline or terminate an employee who tests positive for marijuana, but who uses it for a lawful medical purpose, you may run afoul of the ADA.  Permitting employees to use medical marijuana for debilitating illnesses (such as cancer) may amount to a “reasonable accommodation” under the ADA.  But this scenario could only happen in states that lawfully allow for medical marijuana usage.

Kevin
Washington, D.C.

IF you do a search on medical marijuana and ADA, most courts have denied employees that use the ADA trump card.

I’m not familiar with the CO Constitution but have to agree with comments regarding drawing a distinction between the right to use medical marijuana by prescription vs. the employment discrimination issues.  And that distinction is what makes it sticky.  While CA and CO have different laws, there’s a CA case that may be an interesting read for your analysis. It is highly criticized for the result and the court was accused of skirting the real issue.  (Subsequent attempts to reverse the decision via legislation were vetoed by the Governor.)  But it’s worth being familiar nonetheless. 

In Ross v. Ragingwire Telecommunications, the California supreme court found in favor of an er that fired an ee who failed a drug test.  The ee had a prescription for marijuana and was not claiming the right to use it or be under the influence of it at work.  Rather, he challenged his firing based on failing the drug test.  He sued for wrongful term (public policy) and failure to accommodate (for failing the drug test) under state non-discrimination laws.

Under CA’s Compassionate Use statute, the ee could not be charged with certain crimes, such as possession.  But the court ruled that nothing in the Compassionate Use Act required an employer under our state discrimination laws to accommodate the use of illegal drugs.  The court also reinforced that regardless of state law, marijuana is still illegal under federal law, a la the USSC decision in Gonzales.

Kevin stated: “In addition, if you discipline or terminate an employee who tests positive for marijuana, but who uses it for a lawful medical purpose, you may run afoul of the ADA.  Permitting employees to use medical marijuana for debilitating illnesses (such as cancer) may amount to a “reasonable accommodation” under the ADA.  But this scenario could only happen in states that lawfully allow for medical marijuana usage.”

But I thought employees and applicants currently engaging in the illegal use of drugs are NOTcovered by the ADA when an employer acts on the basis of such use. Tests for illegal drugs are not subject to the ADA’s restrictions on medical examinations. Employers may hold illegal drug users and alcoholics to the same performance standards as other employees. So even though it may be permissable to use medical marijuana in Colorado, it is still against federal ADA, isn’t it?
Linda
Sensible HR

Timely opinion piece from the Denver Post: Medical pot in the workplace?

Looks like another quagmire…...

Linda Konstan