Appendix C: GUIDANCE FOR SERVING EMPLOYERS AND INDIVIDUALS SEEKING EMPLOYMENT WITHIN THE CANNABIS or PSILOCYBIN INDUSTRIES

Hemp and marijuana are different varieties of the same plant, Cannabis Sativa. In December 2018, the Agricultural Improvement Act of 2018 (known as the Farm Bill) was passed by Congress, decriminalizing the cultivation of hemp and the sale of products containing its derivatives and removing hemp from the Controlled Substance Act. Hemp is a variety of the cannabis plant with a tetrahydrocannabinol (THC) concentration that does not exceed 0.3 percent. Any cannabis plant containing more than 0.3 percent THC is considered marijuana. While recreational marijuana use is decriminalized in Colorado, marijuana is classified as a Schedule I controlled substance and is prohibited under federal law. Federal funds, including the vocational rehabilitation grant administered under Title IV of the Workforce Innovation and Opportunity Act (WIOA), shall not be used to promote or support the cultivation, use, possession, or distribution of marijuana or psilocybin. 

Employers in the hemp industry may access all business services available through DVR. Prior to being registered in DVR’s electronic case management system to access business services, employers in the hemp industry will be asked to attest they are in compliance with all federal and state laws to ensure that the business is not promoting or supporting the cultivation, use, possession, or distribution of marijuana. An employer within the marijuana industry or psilocybin industry will not be eligible for any business services through DVR.

• DVR staff shall verify that a business cultivating hemp is registered with the Colorado Department of Agriculture.

• DVR staff shall verify that a business processing, selling, and distributing hemp-based products for human use/consumption (including cosmetics, foods, food additives, herbs, and supplements) is registered with the Colorado Department of Public Health and Environment. 

An eligible individual who chooses to work within the legal hemp industry shall have access to necessary and appropriate vocational rehabilitation services to support successful employment. DVR is prohibited from actively supporting an individual pursuing employment in the marijuana industry and shall not support self-employment plans that result in the establishment of a dispensary or other employment in the marijuana industry. An individual who successfully obtains legal employment in the marijuana industry independently after the provision of substantial vocational rehabilitation services intended to assist in obtaining employment in another field, may be considered for successful closure if all criteria are met. DVR shall not provide any services intended to directly support employment in the marijuana or psilocybin industries and DVR is prohibited from providing payment to any employer in the marijuana or psilocybin industries. DVR shall not purchase marijuana or psilocybin in any form or related equipment.

DVR Counselors shall consider the impact of an individual’s substance use, including marijuana, when establishing an employment goal. Vocational counseling and guidance shall be provided to ensure the individual understands the impact that recreational or medicinal marijuana use may have on the job search. Prior to agreeing to a job goal, the counselor will consider if the individual’s medications or other substance use, including marijuana, may impact the ability to safely and effectively perform job tasks.

The reported use of marijuana should not be the sole reason to require an individual to submit a random urine analysis or to complete a drug evaluation. DVR Counselors should only consider utilizing random urine analysis or completing a drug evaluation for purposes relevant to the individual situation and when it is necessary to move forward with vocational planning and service provision.

If an individual discloses the use of marijuana, the counselor shall ensure they understand that marijuana use remains illegal federally despite being decriminalized locally. Employers are permitted to maintain policies and hiring practices that prohibit marijuana use regardless of location (both on or off the job site).

In Casias v. Wal-Mart Stores, Inc., a Michigan federal district court ruled that an employee who was terminated by Wal-Mart after testing positive for validly obtained medical marijuana had no legal claim for wrongful discharge. The court accepted Wal-Mart's argument that Michigan's medical marijuana law does not regulate private employment; it merely provides a potential affirmative defense to criminal prosecution or other adverse action by the state. The court rejected the plaintiff's argument that the law created a new protected employee class and "would mark a radical departure from the general rule of at-will employment in Michigan." The Casias decision has been appealed.

In Ross v. RagingWire, the California Supreme Court ruled that it is not discrimination to fire an employee for using medical marijuana. The court held that employers in California do not need to accommodate the use of medical marijuana, even when users only ingest or smoke marijuana away from the workplace.

In Johnson v. Columbia Falls Aluminum Company, the Montana Supreme Court ruled, in an unpublished decision, that an employer is not required to accommodate an employee's use of medical marijuana under the federal ADA or the Montana Human Rights Act.

In Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries, the Oregon Supreme Court ruled that because federal criminal law takes precedence over Oregon's medical marijuana law, employers in Oregon do not have to accommodate employees' use of medical marijuana.