Workplace Drug Use Policies and Colorado’s Medical Marijuana Law

Filed Under (Business, Medical Marijuana) on 10-04-2012

medical pot, medical uses of marijuana, medical marijuana laws Issues to consider

By Ann Toney, JD.

More than 160,000 Coloradans have won the right to use marijuana for medical purposes. For employers and employees, this poses interesting questions about workplace drug policies, such as:

•    How should Colorado employers deal with employees who are bona fide medical marijuana users?
•    Do employees risk losing their jobs by using medical marijuana?
•    Do employees have any legal recourse when their employers discharge them because they test positive for medical marijuana use?

To date, a handful of legal cases have challenged employers’ rights to bar employees from
medical marijuana use  and/or to dismiss employees due to such use. For the most part, employees have not fared well in these cases, but the issue is still evolving. As it continues to evolve, here are some things for employers to consider when developing a Colorado workplace drug use policy. 

•    Is random drug testing necessary? Or can drug use risks be addressed by identifying issues with behavior and performance?
•    Should employees be free to make their own lifestyle and treatment choices when not on the workplace or on company time, so long as such choices do not interfere with job performance?
•    What are the potential costs and benefits of maintaining a policy that requires automatic termination of an employee upon receipt of a positive drug test?  What are the costs to employee morale?
•    Should testing be done on employees’ blood or saliva to estimate recent cannabis use, rather than on urine, which detects only metabolites indicating use days or even weeks prior to the test?
•    How can or should the drug use policy be tailored to the employer’s circumstances and workplace?
•    Should there be different policies pertaining to different positions based on responsibilities and safety sensitivity?
•    Is there a good reason for treating employees who use medical marijuana differently from employees who use prescription drugs that have the potential to impair job performance?
•    Will employees be allowed to take a leave if they choose to use marijuana for a serious illness?

For more information about case law regarding medical marijuana in the workplace, see Colorado Medical Marijuana Law, by Ann Toney, JD.