Colorado and Washington Legalize Marijuana: The Basics

In November, Colorado and Washington passed state initiatives by vote to legalize the recreational use of marijuana. Washington’s “Initiative 502,” now on the books as RCWA 69.50.4013, went into effect on Dec. 6, 2012, and Colorado’s “Amendment 64,” now C.R.S.A. Const. Art.18, §16, will go into effect on Jan. 5, 2013. Both new laws regulate and tax marijuana sales, and make it legal for an individual twenty-one or older to use or possess marijuana. Both laws also prohibit public use. The dust has yet to settle around the new legislation, and there will be an adjustment period as Colorado and Washington refine their frameworks for regulation and taxation. However, even at this early stage, the continuing federal prohibition and certain medical marijuana cases provide guidance to the drug testing industry.

What The New Laws Mean for Colleges and Universities
Many colleges and universities receive federal funding, and the Drug-Free Schools and Communities Act puts certain institutions at risk of losing that funding if they knowingly and willingly allow illegal substance use on campus. As a result, universities and colleges are unlikely to lift their bans on marijuana use. Further, the new state laws only legalize use for individuals twenty-one and over, so for most students in Colorado and Washington, marijuana use would remain illegal under both state and federal laws.

Employers Can Look To Medical Marijuana Cases For Policy Guidance
The law has generally favored employer policies in cases involving employees who relied on state medical marijuana laws to challenge their terminations. Courts have pointed out that the Colorado and Washington medical marijuana statutes 1) do not require employers to accommodate the use, and 2) only protect authorized users from criminal prosecution. The statutes do not restrict employers from taking disciplinary action, including termination, because of positive drug tests resulting from medical marijuana use. The court made these points in this year’s landmark case, Casias v. Wal-Mart Stores, Inc., et al, 695 F.3d 428 (6th Cir. 2012). Mr. Casias was a Wal-Mart employee who had a prescription and registry card permitting him to use marijuana for head and neck pain following sinus cancer treatment. After an on-the-job injury to his knee, he was given a standard drug test in accordance with Wal-Mart’s drug policy. Wal-Mart did not honor Mr. Casias’s registry card and he was terminated for his marijuana-positive result. In his suit against Wal-Mart, he contended that the Michigan medical marijuana statute prevented Wal-Mart from disciplining him because he was a card holding, “qualifying patient” under the statute. Mr. Casias also said he never used marijuana at work or came to work under the influence. The court sided with Wal-Mart, stating that the Michigan statute only provided a potential defense to criminal prosecution or other state action; the law did not restrict private decisions by Michigan businesses and did not repeal the general at-will employment rule. The court’s concern was that “accepting the plaintiff’s argument could prohibit any Michigan business from disciplining employees who used marijuana in accordance with the statute—even though the statute specifically did not require employers to accommodate the medical use of marijuana in the workplace. The court came to a similar conclusion in the Washington case, Roe v. TeleTech Customer Care Management LLC, 257 P.3d 586 (Wash. 2011). Ms. Roe was prescribed marijuana for migraine headache symptoms, and only used it in her home, although she acknowledged that it could affect a patient sometime after use. She was offered a customer service position, contingent in part on a drug test. She informed TeleTech of her medical marijuana use before taking the drug test, began job training, and was then terminated because of her marijuana-positive result. Ms. Roe sued for wrongful termination in violation of the Washington medical marijuana law. Her employer won on summary judgment, with the court finding that the state medical marijuana law only provided users and physicians with a defense against criminal prosecution, did not create a private cause of action for wrongful termination against private parties, and did not rise to the level of being a public policy exception to the at-will employment doctrine. The Washington statute specifically stated that it did not require accommodation of medical marijuana use in any “place of employment,” and the court reasoned that if the law intended to protect off-site use, such as Ms. Roe’s use at home, it would have spelled out exceptions for certain occupations and specified permissible levels of impairment. Colorado courts have addressed the medical marijuana issue in the unemployment benefits case, Beinor v. Industrial Claim Appeals Office of the State of Colorado and Service Group, Inc., 262 P.3d 970 (Colo. Ct. App. 2011). Mr. Beinor was terminated for a positive drug test resulting from the use of medical marijuana and argued that the denial of unemployment benefits violated his rights under the Colorado medical marijuana law. The state constitution disqualified an employee from benefits if he or she tested positive for the presence of “not medically prescribed controlled substances,” including marijuana, in his or her system “during work hours.” The court said it was proper to deny unemployment benefits because the state law only protected Mr. Beinor from criminal prosecution—it did not protect him from the employer’s zero-tolerance policy. The state law did not “require any employer to accommodate the medical use of marijuana in any workplace,” and the court noted that its ruling was consistent with other courts’ interpretations.

Recreational use— A tougher case for employees?
These recent cases demonstrate that even if state law allows medical marijuana use, employers do not necessarily have to do so. Also, based on the courts’ support for employer drug policies in these medical use cases, a terminated employee would likely face a more difficult challenge making a case for wrongful termination based on recreational use. At this time, even with new state laws permitting recreational marijuana use, drug-free workplace policies appear to be on solid ground.