Amendment 64 has legalized marijuana in the state of Colorado for persons 21 of age and older but the amendment does not come without restraints. One of those restraints is the ability for employers to restrict the use of marijuana in the workplace. Nothing in amendment 64 “requires 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.” (Link)
There are statutes in Colorado that protect employees’ rights to participate in legal activities outside of the workplace, but conflicting state and federal laws still allow employers to drug test and fire employees for testing positive for illegal substances (which includes marijuana by federal law).
The Federal Drug Free Workplace Act of 1988 gives businesses that comply with the Act little choice when it comes to marijuana in the workplace. “[Marijuana] remains a criminalized substance at the federal level, and any business or organization that receives federal grant or contract must comply with the act.” (Link)
The problem with drug testing for marijuana is that it tests for usage in the past, not just at present. “A standard employee drug urine test can be positive weeks after the last usage and even longer for heavy users.” (Link) This interferes with an employee’s ability to partake in off-duty legal activities. They have the right to smoke marijuana off-duty but the employer also has the right to fire any employee that tests positive for marijuana at the workplace.
One suggestion for employers who wish to ban marijuana in the workplace is to make clear policies. In order for employers and employees to have a clear understanding of their rights and avoid confrontation, employee handbooks need to clearly identify the rights of both the employer and the employee regarding marijuana usage. This may help to avoid confusion while the law is being implemented and legal policies are being written.