Aspen seminar: Weeding through laws on medicinal marijuana isn’t easy
April 30, 2010
ASPEN – Employers seeking clarity on Colorado’s medical marijuana laws may have come away from a seminar Thursday in Aspen with only a slightly less hazy understanding of the issues.
The constitutional amendment that allows medical marijuana use in Colorado has yet to be challenged in court on various fronts, attendees were told at the seminar. The gathering was hosted by the Aspen Chamber Resort Association and workers compensation insurer Pinnacol Assurance. In addition, state lawmakers are still arguing over how to regulate the burgeoning industry.
Two simple rules, however, are clear, said Glenwood Springs attorney Daniel Wennogle: Employers are not required to accommodate medical marijuana use in the workplace and it can’t be used in a way that endangers the health or well-being of another person.
The term “workplace” may extend to a customer’s workplace, serviced by an employee, as well, but that’s among the many questions that remain unresolved, he said. There is much that has yet to be tested in court, the process that will eventually create a body of law that will help guide employers and employees.
While it’s clear an employee can be barred from smoking marijuana while operating a forklift, for example, the trickier question is what recourse an employer has when a worker uses medical marijuana at home, but is still potentially under its influence at work.
“That’s where the picture is not black and white,” Wennogle said.
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Colorado’s Anti-Discrimination Act allows an employee to bring a discrimination suit if he or she is fired for a lawful activity committed off the premises during nonworking hours. Medical marijuana is illegal under federal law, but permitted by the state. Whether the user is protected under the state act is yet another issue that remains untested in Colorado courts.
On the other hand, the act contains an exemption that could allow employees in certain occupations to be fired for off-site use that results in a positive test for marijuana on the job, Wennogle told the group.
But, even the testing is subject to challenge. Employers who have written policies on drugs need to make sure the language of the policy accomplishes their goal, he advised.
“Depending on the arena you’re in, the wording of the policies can be important,” he said. “To just throw some magic sentence in there and think you’re covered is a dangerous approach.”
Prohibiting workers from being under the influence of a drug at work versus having no trace of a drug in their system are two different things. An employer who fires an employee for being under the influence needs a defensible definition of “under the influence” and a testing protocol to prove the worker violated the policy, Wennogle said.
There are cases in other states with laws similar to Colorado’s constitutional amendment in which firing an employee after a positive drug test for marijuana was upheld in court, he added.
“So, employers do have a body of law from other states that should be persuasive on how our state should go, but there’s no guarantee,” Wennogle said.
Employer liability, marijuana user confidentiality and landlord-tenant issues were also addressed in a handout given to attendees at the session.
Fifty people registered to attend, but slightly more than half that number took a seat in the Aspen Square Hotel conference room for the presentation.
Employer Barry Cryer, who said he has a “zero-tolerance” policy for drugs in his company, Telephone Systems Consultants Inc. of Carbondale, said liability was his focus.
“My concern is my exposure,” said Cryer, who planned to have an attorney look over his company’s drug policy after listening to Wennogle.
“I don’t know where to draw the line,” said Trish Hirsch, in human resources at Frias Properties in Aspen. She said she came to the presentation seeking clarity on the issues.
“If they do it at six in the morning, before they come to work, is that OK?” she pondered before the talk began.
The answer, according to Wennogle, isn’t as simple as yes or no.