Medical/Recreational use of Marijuana

In a rush to run out and start reliving your high school days by smoking some pot? NOT SO FAST.

Amendment 20 (Colorado Medical Marijuana) states: "Nothing in this section shall require any employer to accommodate the medical use of marijuana in any workplace." In other words, even if you have a recommendation to use "medical Marijuana" your employer is not required to change it's company policy to accommodate your use. Regardless of Amendment 20, if you smoke and your company's policy does not allow the use of Marijuana, you will likely find yourself unemployed.

Amendment 64 (Colorado's recreational use of Marijuana) does not provide any additional guidance on this issue. The Amendment contains three provisions that address employers' rights. First, like Amendment 20, Amendment 64 does not require employers to "permit or accommodate" the use of marijuana "in the workplace." Second, employers may have policies restricting the use of marijuana by employees. Third, employers may prohibit and regulate the "possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana" on their property.

(update 3/21/13) from "Task Force Report on the Implementation of Amendment 64"

"Maintaining the Status Quo for Employers and Employees

This recommendation seeks to clarify the uncertainty for employers and employees regarding their legal rights regarding employee use of marijuana during non-work hours. It is based on the Amendment 64 campaign argument that the initiative did not affect the ability of

employers to maintain their current employment policies regarding off-site use of marijuana, or to create new ones, and on the 2012 State Ballot Information Booklet (Blue Book) statement that the Amendment would not affect the ability of an employer to restrict the use

or possession of marijuana by employees. The Task Force affirms that the plain language of Amendment 64, Section 6(a) makes it clear that the intent of the voters was to maintain the status quo for employers and employees, and that employers may maintain, create new, or modify existing policies in response to the passage of the measure. The Task Force recommends that employers should be encouraged to review current drug-free workplace policies, including but not limited to hiring, sanctioning, termination, and drug testing, in response to passage of the measure."

So for the employer, Amendment 64 does not restrict employers to "maintain, create new, or modify existing policies in response to the passage of the measure."

In other words, if you have a policy, you can keep it, if you want a new policy you can create it, and if you want to change your policy, you can change it. Nothing in Amendment 64 prevents the employer form having a drug free workplace policy.

Initiative 502 (Washington's Recreation use of Marijuana) states that the initiative "does not require employers to accommodate the use of the marijuana," so just like Colorado's amendments, while you may not be prosecuted for the use of marijuana, you can be fired.

DOT TESTING

If you test under DOT guidelines: In no case will "medical Marijuana" or any of the recreational use laws change DOT results.

The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40, at 40.151(e) – does not authorize “medical marijuana” under a state law to be a valid medical explanation for a transportation employee’s positive drug test result.

That section states:

§ 40.151 What are MROs prohibited from doing as part of the verification process?

As an MRO, you are prohibited from doing the following as part of the verification process:

(e) You must not verify a test negative based on information that a physician recommended that the employee use a drug listed in Schedule I of the Controlled Substances Act. (e.g., under a state law that purports to authorize such recommendations, such as the “medical marijuana” laws that some states have adopted.)

Therefore, Medical Review Officers will not verify a drug test as negative based upon information that a physician recommended that the employee use “medical marijuana.” Please note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

Here is a statement from DOT regarding Medical and recreational Marijuana

DOT Office of Drug and Alcohol

Policy and Compliance Notice