Out Of Joint: How The Growing Disconnect Between Federal And State Marijuana Laws Impacts Employers

Article by Barbara L. Johnson, Edward Cadagin and Peggah Sadeghzadeh

On Election Day, Colorado and Washington became the first states to legalize the recreational use of marijuana. The passage of these laws raises questions about employers' ability to enforce company drug testing policies and limit marijuana use outside the workplace. Employers have already been caught between diametrically opposed laws when dealing with employees who use so-called medical marijuana in accordance with state law, but fail company drug tests for marijuana, an illegal drug under federal law. Courts have been consistent in affirming an employer's right to regulate marijuana use in the workplace. Now, however, the Colorado and Washington laws legalizing marijuana set the stage for additional challenges to employers' substance abuse and drug testing policies.

Citizens of Colorado and Washington passed ballot measures on November 6, 2012, legalizing the recreational use, display, purchase, and transport of 1 ounce or less of marijuana within the state. The laws, Initiative 502 in Washington and Amendment 64 in Colorado, would regulate marijuana in ways similar to the regulation of alcohol. Both laws prohibit driving under the influence of marijuana, the sale of marijuana by unlicensed facilities, and the use of marijuana by persons under the age of 21. The Colorado law specifically addresses employers' rights, stating the law "is not intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or . . . affect the ability of employers to have policies restricting the use of marijuana by employees." The Washington law does not mention employers; however, it does provide for a cost-benefit evaluation of the law's economic impacts on workplace safety.

Under the Washington law, legal possession and DUI limits will become effective on December 9, 2012, and the state will have until December 1, 2013, to establish rules related to licensing of producers, processors, and retailers. Until such rules have been promulgated, retail sales to the general public are not allowed. The law outlines a licensing system in which producers and processors must renew licenses annually and may not have any financial stake in the retail business. This system is similar to the three-tier system used to control the sale of liquor in many states. The law also provides that the surplus received by the state should be earmarked such that 55% will be...