Author: David B. Weisenfeld, XpertHR Legal Editor

July 22, 2013

A new XpertHR podcast features an in-depth panel discussion of state marijuana legalization laws and what they mean for employer drug testing policies, workplace accommodations, collective bargaining agreements and other questions affecting employers. The discussion features insights from a pair of employment attorneys, Emily Hobbs-Wright of Holland & Hart in Denver and Vanessa Gilbreth of Proskauer Rose in Boston.

Colorado and Washington Could Kick Off Trend

Nearly 20 states plus the District of Columbia have legalized medical marijuana use. But it was Colorado and Washington that drew nationwide headlines in November 2012 by taking the bigger step and legalizing recreational marijuana use for individuals 21 and older through a pair of ballot initiatives. Meanwhile, Alaska voters may be given the chance to follow suit in 2014.

So what do these measures mean for employers, especially in light of the fact that the drug's use remains illegal under federal law?

Hobbs-Wright says the Colorado law regulates marijuana much like alcohol. She also is quick to note that the state does not require employers to permit or accommodate marijuana use in the workplace and that employers can continue to have policies restricting its use.

However, Colorado does not have any language stating that employers can terminate workers for marijuana use. Hobbs-Wright says, "The absence of that type of language... has actually opened the door for some employees to argue that employers can regulate marijuana use inside the workplace, but they can't impede employees' rights to use marijuana outside of work."

Medical Marijuana Laws Leave Room for Ambiguity

Vanessa Gilbreth practices in Massachusetts, one of the states where medical marijuana is legal. Gilbreth says employers in her state and others can still regulate on-site marijuana use, even by registered individuals, but suggests the law is less clear involving the failure of preemployment or random drug tests.

In California, Oregon, Washington and Colorado, courts have held that despite medical marijuana legalization laws, employers can fire or refuse to hire individuals who fail drug tests regardless of the reason. But in Massachusetts and Connecticut, where the laws are newer, the issue has yet to arise.

Gilbreth says she has seen some misconceptions regarding medical marijuana laws. "The first is employers that think medicinal marijuana laws have nothing to do with their workplace, and the other is employers who fear these laws will yield rampant drug use in the workplace. From my perspective, the truth is somewhere in between."

With attitudes shifting on this issue, Hobbs-Wright says it's a good time for employers in Colorado and elsewhere who have drug testing programs and zero-tolerance policies to consider where they really stand and clearly address the consequences of workplace drug possession.