In the 2012 elections, voters in Colorado and Washington passed initiatives directing their states to decriminalize the possession of marijuana by adults for recreational use. Despite the "buzz" about Colorado and Washington's new laws, including snarky references to the Colorado state song, "Rocky Mountain High," predictions suggesting a dramatic effect of these laws on drug-free workplace policies are likely little more than hot air.

Colorado law prohibits employers from terminating employees for engaging in "any lawful activity off the premises of the employer during nonworking hours" unless the employer's decision relates to a bona fide occupational requirement, the employee's specific duties or the employer's efforts to avoid a conflict of interest. However, Colorado's Amendment 64 not only states, "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," it also disclaims any intent to "affect the ability of employers to have policies restricting the use of marijuana by employees."

The new law also states that it will not affect the right of an employer (or other entity) that occupies, owns or controls a property to prohibit the use, possession, transfer and a number of similar activities involving marijuana on that property. Nor does the law allow individuals to drive while impaired by or under the influence of marijuana, or excuse them from criminal penalties if they do so.

Similarly, while Washington's measure I-502 decriminalizes recreational marijuana use, it also stiffens the penalties for driving under the influence of marijuana.

Of course, the real issue is whether states can declare conduct "lawful" when the same conduct is considered criminal as a matter of federal law, a question that was answered by the U.S. Supreme Court in 2005 when it declared, in Gonzales v. Raich, 545 US. 1 (2005), that the federal government had the power to criminalize marijuana-related conduct even when the marijuana was grown and used entirely within a single state. If state law conflicts with federal law, can the state compel employers to ignore behaviors that are still illegal as a matter of federal law?

Although several states have adopted medical marijuana laws that suggest employers may be obligated to accommodate medical marijuana use by disabled workers, any duty to so accommodate has been soundly rejected by each of the state supreme courts asked to consider the issue. The U.S. Court of Appeals for the 6th Circuit reached the same conclusion in reviewing a case alleging that Michigan's medical marijuana law required an employer to accommodate the medical use of marijuana by its employees, and the U.S. Court of Appeals for the 9th Circuit rejected an argument that the Americans with Disabilities Act's public accommodations provisions prohibited municipalities in California from refusing to license medical marijuana dispensaries.

If states cannot force employers to accommodate the medical use of marijuana by disabled individuals, a protected class, it seems unlikely that a state's authority to prohibit employers from disciplining individuals engaged in lawful, off-duty conduct can extend to conduct that remains unlawful as a matter of federal law. Nevertheless, litigation designed to challenge the limits of state authority seems inevitable.

Despite the dramatic headlines, a close look at the measures approved reveals that it is unlikely that employers in the affected states will need to take any swift action to amend their drug-free workplace policies or their drug-testing programs on account of these laws. It may be important, however, for employers to communicate to employees and applicants what effect, if any, the changes to the laws will have on the employer's existing policies.

Nancy Delogu can be reached at nndelogu@littler.com or 202-414-6863. Chris Leh can be reached at cleh@littler.com or 303-362-2888.

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