On November 6, 2012, voters in Colorado and Washington approved state initiatives making it lawful for persons age 21 or older to possess up to one ounce of marijuana for personal use. Colorado and Washington thus became the first states to decriminalize recreational marijuana use on the state level. Both states already had laws allowing the medical use of marijuana, as do 15 other states and the District of Columbia. (Massachusetts will join that number as a result of a measure approved in the November 6 election.) Once the Colorado and Washington measures go into effect, the recreational use of marijuana by adults will no longer be unlawful under the criminal statutes of those two states. This raises concerns for Colorado and Washington employers with substance abuse policies prohibiting “the illegal use of drugs,” working under the influence of “an illegally used drug,” or possession in the workplace of a controlled substance for which the employee does not have a valid prescription.

Current legal authority indicates that such policies can continue to be enforced as written with respect to marijuana, even in Colorado and Washington, because the possession and use of marijuana in any amount and for any purpose remain unlawful under federal law. The federal Controlled Substances Act classifies marijuana as a Schedule I drug, which means that it cannot be lawfully possessed, used, bought, produced, or prescribed. Because of this broad federal prohibition of marijuana use, courts have repeatedly held that employers in states permitting the medical use of marijuana were not required to exclude medicinal use of marijuana from the scope of their substance abuse policies, even when an employee was using marijuana in connection with a disability and sought employer approval of that use as a reasonable accommodation under the Americans with Disabilities Act. The Washington Supreme Court has, in fact, held that the Washington medical marijuana statute did not establish a clear public policy that would support the wrongful discharge claim of an employee who was terminated for testing positive on a drug test due to the medical use of marijuana. This line of cases is instructive on the way courts are likely to rule on workplace policies prohibiting unlawful drug use in Colorado and Washington. Marijuana use is unlawful for any purpose under federal law, so recreational marijuana use in Colorado and Washington should remain subject to substance abuse policies that refer generally to “illegal drug use.” Moreover, the new laws in Colorado and Washington do not bar employers from prohibiting marijuana use by employees or from making a positive result for marijuana on a drug test a dischargeable offense or a reason for rejecting an applicant.

Adding another wrinkle to the issue in Colorado is that state’s statute prohibiting employers from discharging an employee for engaging in any lawful off-duty activity away from the employer’s premises. A Colorado employee who is terminated for testing positive for marijuana may now try to argue that the test result was due to off-duty recreational marijuana use and that such use is lawful under Colorado law. Because marijuana use is unlawful under federal law, however, it should fall outside the protection of the Colorado “lawful activity” statute, even though it is lawful under Colorado law.

Practical Implications

Although the decriminalization of recreational marijuana use in Colorado and Washington should not have any effect on employers’ substance abuse policies that refer generally to “illegal” or “unlawful” drug use, employers operating in those states would be wise to remind employees that possession and use of marijuana are unlawful under federal law and that employees may still be disciplined or discharged for marijuana use under the substance abuse policy or for testing positive for marijuana use on a drug test. Nonunionized employers should consider clarifying their substance abuse policies to state expressly that possession or use of marijuana for recreational or medical purposes is prohibited by federal law and is subject to the policy’s provisions relating to illegal or unlawful drug use. Employers with unionized employees, however, should consult legal counsel before making any change to their substance abuse policies.