How will the much-publicized legalization of marijuana in Colorado affect an employer’s right to perform drug tests and to fire an employee in possession or under the influence? For many, the passage of Amendment 64 in Colorado (and certainly its virtual twin in Washington), legalizing individual possession and use of up to one ounce of marijuana, creates images of stoned employees hiding behind a legal right to possess and consume such a psychoactive substance. After years and expense dedicated to craftily wording anti-drug policies aimed at restricting and even prohibiting such conduct, many employers are understandably asking themselves, What now?

Following the 2001 adoption of Ballot Amendment 20, which decriminalized the use, possession and cultivation of marijuana by patients suffering from a debilitating condition, Amendment 64 has seemingly stretched that authorization beyond those with medical need to all persons over the age of 21. All citizens (again, over the age of 21) will now be permitted to purchase up to one ounce of marijuana and grow up to six plants in their homes. While termination of employment regarding a person caught with or under the influence of marijuana seemed relatively simple in the past, how will Amendment 64 alter an employer’s actions going forward?

There is no doubt that the conflict between Amendment 64 and federal law, which prohibits such possession or use of marijuana, will create a firestorm of arguments analyzing supremacy issues, the outcome of which will set significant legal precedent. For now, business owners may take solace in specific language contained in Amendment 64 aimed at protecting employers’ rights.

Within Amendment 64, the drafters specified that:

“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.”

In short, and at least for now, it appears that the language of Amendment 64 allows employers with restrictive policies to retain the right to prohibit the possession and/or use of marijuana among its employees. Arguably, that right still may extend to drug-testing policies and for-cause termination of employment for those under the influence. Case law arising under the prior Amendment 20 generally held that medical marijuana users did not have their employment protected simply because they had a doctor’s prescription to purchase the drug. With the expressly supportive language of Amendment 64, we might anticipate that Colorado courts would be similarly protective of the employer’s rights.

So what is the problem?

Unfortunately, notwithstanding the specific language of the Amendment, employers still may face legal challenges arising out of termination of employment issues. Specifically, employers may face challenges from employees who cite Colorado law prohibiting an employer from firing an employee for engaging in a “legal activity” performed while off duty. With the effective legalization of limited amounts of marijuana, this conflict may force future judicial consideration of the issue. If an employer with an anti-drug policy terminates the employment of someone who admittedly used marijuana the night before at home, the conflict between the express rights outlined in the Amendment and the prohibition on terminating someone’s employment for otherwise legal conduct may spin the conflict into protracted litigation.

In spite of the specific language contained in the initiative, and considering Colorado’s status as an at-will employment state, the potential for litigious conflict leaves Colorado employers with multiple concerns when terminating the employment of someone under the influence. Wilson Elser’s Labor & Employment practice, with members located throughout the region, is experienced in analyzing these types of claims and readily available to assist.