Marijuana Laws Liberalized In Colorado, Washington - But Effect On Workplace Policies Likely Small

The 2012 elections placed a number of marijuana initiatives before state voters around the United States, ranging from efforts to legalize the sale and use of marijuana for recreational purposes to further expansion of the "medical marijuana" laws that currently exist in 17 states and the District of Columbia. Voters in Colorado and Washington passed initiatives directing their states to decriminalize the possession of marijuana by adults for recreational use. The new laws, which contemplate each state setting up a regulatory system to administer the sale and distribution of marijuana by the state in a manner similar current state laws on the use and sale of alcohol, are unique in the nation and, according to news sources, broader than the laws permitting the purchase of small amounts of marijuana in Amsterdam.1 Oregon voters, in contrast, rejected a ballot initiative that would have legalized marijuana for recreational use.

Massachusetts has adopted a "medical marijuana" law that decriminalizes the use and possession of marijuana by state residents with debilitating medical conditions. Montana voters have authorized amendments to that state's existing medical marijuana law that narrow who is eligible to use marijuana for medical reasons.

Summary of Initiatives & Their Possible Impact

Despite the "buzz" about Colorado and Washington's new laws, including snarky references to the Colorado state song, "Rocky Mountain High," predictions suggesting a dramatic effect of these laws on drug-free workplace policies are likely little more than hot air. Colorado law does prohibit employers from terminating employees for engaging in "any lawful activity off the premises of the employer during nonworking hours" unless the employer's decision relates to a bona fide occupational requirement, the employee's specific duties, or the employer's efforts to avoid a conflict of interest.2 However, Colorado's Amendment 64 not only states, "Nothing in this Section 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," it also disclaims any intent to "affect the ability of employers to have policies restricting the use of marijuana by employees." The new law also states that it will not affect the right of an employer (or other entity) that occupies, owns, or controls a property to prohibit the use, possession, transfer, and a number of...