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.

On November 6, 2012 (as we have discussed here), voters in Colorado and Washington approved ballot measures purporting to legalize the distribution, possession, and use of small amounts of marijuana for recreational purposes. Colorado’s Amendment 64 expressly reiterated that it does not “require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace." But it provides additional protections for employers. For example, Amendment 64 acknowledges the right of employers and others who occupy, own, or control a property to prohibit the use, possession, and transfer of marijuana there. Amendment 64 affirms prohibitions on driving while impaired by, or under the influence of, marijuana. Most importantly, however, the measure disclaims any intent to "affect the ability of employers to have policies restricting the use of marijuana by employees."

One crucial issue for Colorado employers is the effect of Amendment 64 on their ability to continue to enforce their policies prohibiting marijuana use by employees. With some exceptions, Colorado’s so-called “Lifestyle Discrimination Statute” prohibits employers from discharging employees for engaging in lawful, off-premises activities during non-working hours. The prevailing view among Colorado employers is that because the possession and use of marijuana for any purpose is illegal under federal law, an employee’s possession or use of marijuana off-site and off-duty does not fall within the scope of the law. Consequently, termination for a positive drug test is legal.

Although there is no controlling case law on the issue, Colorado courts have provided some indirect guidance. In 2011, for example, in Beinor v. Industrial Claims Appeals Board, the Colorado Court of Appeals, in a 2-1 decision, held that an employee terminated for testing positive for marijuana in violation of a zero-tolerance policy may be denied unemployment compensation even if the worker’s use of marijuana is considered “medical use” under state law, and even in the absence of the worker’s impairment. Notably, the court reserved the question of whether Amendment 20 prohibited an employer from discharging an employee for using medical marijuana. A vigorous dissent argued that Amendment 20 did not “encompass the presence of marijuana in one’s blood after the lawful use of medical marijuana at home.”

On December 10, 2012, Colorado Governor John Hickenlooper signed an executive order creating the Task Force on the Implementation of Amendment 64. The task force’s mission is “to identify the legal, policy and procedural issues that need to be resolved, and to offer suggestions and proposals for legislative, regulatory and executive actions that need to be taken, for the effective and efficient implementation” of the Amendment. Comprised of 24 state legislators, executive agency officials, and other stakeholders, the task force is addressing various issues, including the “impact of Amendment 64 on employers and employees and the Colorado economy.” The task force soon will report its recommendations to the governor, the state legislature, and the state attorney general.

On February 5, 2013, the task force considered a recommendation concerning Amendment 64’s impact on employers and employees:

The plain language of Amendment 64 Section 6(a) makes it clear that the intent of the voters was to maintain the status quo for employers and employees, and that employers may maintain, create new, or modify existing policies in response to the passage of the measure. The Amendment 64 Implementation Task Force recommends that employers should be encouraged to review current drug free workplace policies, including but not limited to hiring, sanctioning, termination and drug testing, in response to passage of the measure.

As expected, employee advocates argued that Amendment 64 changed the status quo to give off-the-job pot use the same kind of protection as alcohol use. They also contended that, although employers could restrict marijuana use by employees, they could not prohibit it. On a majority vote, however, the task force accepted the recommendation.
Although the task force’s recommendation lacks the force of law, its implications for employers are important:

• Under Amendment 64, the rights of a person to use and possess small amounts of marijuana for recreational purposes do not trump the rights the amendment reserves to employers to restrict possession and use by its employees, whether that use is on-duty or off-duty, whether it is for medical or recreational purposes.
• Employers should review and update their drug policies to ensure that employees understand that they apply to the use of all drugs that are illegal under state or federal law, including marijuana.
• Employee advocates in Colorado are likely to mount legal challenges on behalf of employees terminated for testing positive for marijuana they used while outside the workplace and during non-working hours. 
• Employers in others states seeking to enact liberalized marijuana laws should work vigilantly to ensure that those measures include strong, clear protections so they will be able to maintain, change, and enforce their drug-free workplace, zero-tolerance, random drug testing, and related policies.

The recommendation augurs well for employers as the debate over the liberalization of marijuana laws continues.