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Colorado Drug Laws Are Blowing Smoke

As an employer you have many legal concerns when dealing with employees, contracts, state and federal laws and running a successful business.  Now, the State of Colorado has passed a law legalizing the recreational use of marijuana in Colorado.  So what do you do?

At Sisk & Co., we understand this issue can be confusing and want to help clarify how the law may affect your company.

1.     Companies with federal contracts that are subject to the Drug Free Workplace Act and companies operating under the Department of Transportation regulations must follow detailed drug testing criteria outlined in these laws.

The DOT regulations have not changed. Marijuana use is still prohibited per the regulation. The DOT drug screen tests for: Marijuana (THC metabolite), Cocaine, Amphetamines, Opiates (including heroin), and Phencyclidine (PCP).

2.    Zero Tolerance Drug Policy

In light of the new law, employers should take this opportunity to revisit their company policies and be sure to inform all employees of any changes using a signed agreement form to be added to the individual personnel files.  Ensuring written policies are aligned with company values and are compliant with contractual obligations, including MSA’s, is of utmost importance.  One consideration is to state that the company’s zero tolerance drug policy is based on federal law or DOT regulations.  Management should concisely convey that the integrity of company operations, products, services, as well as the safety of employees and the public, is paramount.  Also, consistent enforcement of established policies can be as important as the policies themselves.

3.   Some issues worth considering:
Amendment 64 contains the following wording with respect to marijuana in the workplace:
·        “Nothing in this Section is intended to require an employer to permit or to accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”
·       “Nothing in this Section shall prohibit [an] employer or any other entity who occupies, owns or controls a property from prohibiting or otherwise regulating the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property.”

The distinction between decriminalization and legalization is critical, because Colorado also has a legal off-duty activities law (“CLODA”) that protects employees from being fired for engaging in legal conduct while off-duty.  Current case law has shown that CLODA doesn’t protect employees against discharge for conduct that is legal under state law but illegal under federal law.  At the present time, there is no established, legal limit that defines impairment with regard to marijuana.  Concerning alcohol, Colorado state law considers an individual legally impaired when his or her blood alcohol level is .08 or more.  Drivers of commercial vehicles are legally impaired when their blood alcohol level is .04 percent or greater.

At Sisk & Co., we look forward to partnering with you to navigate the ever changing business environment.