New Colorado Medical Marijuana Laws Provide Additional Guidance for Employers

On June 7, Governor Bill Ritter signed two new laws (HB 1284 and SB 109) that clarify the regulation of medical marijuana. Although the primary focus of the laws is the curtailment of Colorado’s rapidly expanding medical marijuana industry, there are provisions that will assist employers in setting firm limits on employees’ use of medical marijuana.

Medical marijuana has been legal in Colorado since 2001, when voters passed an amendment to Colorado’s constitution. Article XVIII, Section 14, allows persons who suffer from a “debilitating medical condition” to engage in the use of marijuana that is “medically necessary” to address the condition. Possession of less than two ounces of marijuana, or three or fewer flowering marijuana plants, is presumed to be lawful. A medical marijuana user seeking lawfully protected use must register with the state of Colorado and obtain a medical marijuana card issued by the Colorado Department of Public Health and Environment.

Article XVIII, Section 14, states that “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any work place.” However, employers were left with little guidance regarding the use or consumption of medical marijuana by an employee that takes place off-site or while the employee is not working, but nonetheless renders the employee under the influence of medical marijuana when the employee returns to work.

The new laws clarify permissive medical use of marijuana in a way that assists employers. Effective immediately, a registered user may not:

• Undertake any task while under the influence of medical marijuana when doing so would constitute negligence or professional malpractice;
• Possess or otherwise engage in the use of medical marijuana on the grounds of a school or in a school bus;
• Engage in the use of medical marijuana while in a vehicle, aircraft, or motorboat; or
• Operate, navigate, or be in actual physical control of any vehicle, aircraft, or motorboat while under the influence of medical marijuana.

Although legal challenges are anticipated, it is likely that the challenges will address the new laws’ restrictions upon the cultivation and sales of medical marijuana, and not the limited restrictions on medical use outlined above.