November 30, 2021

Volume XI, Number 334

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November 29, 2021

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Retail Sales of Marijuana Legal in Colorado, but Employers May Still Test, Fire Employees for Use

Effective January 1, 2014, state-licensed retail establishments are permitted to sell marijuana to the general public under Colorado’s “Amendment 64: The Regulate Marijuana Like Alcohol Act of 2012,” which on November 6, 2012, Colorado voters approved as an amendment to the state constitution. For information, see our article, Marijuana Legalization Ballot Initiatives Passed by Colorado and Washington Voters; ‘Medical Marijuana’ Passed in Massachusetts.

The amendment allows persons over 21 of age to possess up to one ounce of marijuana and grow up to six marijuana plants for personal use, and authorizes the licensing of retail facilities for the sale of marijuana to adults (regardless of whether they reside in Colorado). The personal-use-and-cultivation provisions became effective in December 2013. Public consumption and unlicensed sales remain illegal. 

How does this affect Colorado employers? Amendment 64 provides, “Nothing in this section is intended to require an employer to permit or 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.” Accordingly, employers may continue to enforce their drug testing policies against employees and applicants who test positive for marijuana, to publish and enforce policies prohibiting the possession or consumption of marijuana during working hours, and to discipline any employee whose job performance is impaired because of the use of marijuana. 

In December 2013, the Colorado Court of Appeals reinforced employers’ right to lawfully discharge employees who test positive for marijuana, even where the employee has a medical marijuana card and there is no evidence of “impairment” on the job. Coats v. DISH Network, L.L.C., Nos. 12CA0595 & 12CA1704. Brendan Coats, a quadriplegic, sued his employer after he was fired in 2010 for failing a drug test. Since 2009, Coats used marijuana to treat ailments of his condition pursuant to Colorado’s Amendment 20, which legalized the medical use of marijuana.  The Court of Appeals affirmed the dismissal, explaining, “For an activity to be lawful in Colorado, it must be permitted by, and not contrary to, both state and federal law.” 

While medical (and recreational) marijuana use may be permitted under state law, it is still a Schedule I substance under the Federal Controlled Substances Act (21 U.S.C § 801, et seq.) (“CSA”) and, thus, unlawful under federal law. In other words, regardless of state law, employers may follow federal law in prohibiting employee drug use. 

Jackson Lewis P.C. © 2021National Law Review, Volume IV, Number 2
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About this Author

Roger Kaplan employee drug testing attorney, Jackson Lewis Law Firm
Principal

Roger S. Kaplan is a Principal in the Long Island, New York, office of Jackson Lewis P.C. He has worked with many employers to help assure their drug and abuse testing policies and procedures comply with the state and federal laws and to develop effective testing strategies. He has frequently addressed business and professional groups on substance abuse testing issues.

Mr. Kaplan has represented clients and appeared before executive departments and administrative agencies, such as the United States Department of Labor (...

631-247-4611
Ryan P. Lessmann, Jackson Lewis, claims alleging discrimination lawyer, whistleblower retaliation attorney
Office Managing Principal

Ryan Lessmann is the Office Managing Principal of the Denver, Colorado, office of Jackson Lewis P.C. He practices primarily in the area of employment litigation, including representing employers against claims alleging discrimination, retaliation, and wrongful termination, matters involving trade secret protection, restrictive covenants and unfair competition, and various contract issues.

Mr. Lessmann also counsels and defends employers in wage and hour compliance matters. Prior to joining Jackson Lewis, Mr. Lessmann was an...

303-225-2418
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