Marijuana Legalization Raises HR Questions

Denver partner Danielle Urban was quoted in the July 7 LegalHealthPro article "Marijuana legalization raises HR questions." The article discusses the challenges for business owners in the 16 states that have decriminalized marijuana, the 2 that made it fully legal, and the 22 where it is approved for medical use.

“Although marijuana use is not protected under the ADA,” she explains, “if someone comes to you and says they have a debilitating medical condition, you can’t just say, ‘Well, we’re not going to accommodate marijuana use,’ without looking at other possible accommodations. It would be unwise to end the conversation without exploring any other solutions to their condition. And in a state like Arizona, you may have no choice but to incorporate marijuana use unless it’s in a safety position.”

One of the biggest problems for employers when it comes to marijuana is that, unlike alcohol, there’s no way to gauge impairment through a scientific test; daily marijuana users — which many medical users are — will have a much higher tolerance for the active chemicals in marijuana than will those who only use it occasionally.

“In Colorado, a lot of employers don’t want to say to their employees, ‘You can’t use it even on your own time,’” Danielle notes. “They don’t want to be involved in their employees’ personal lives — and probably some of the employers voted for the Amendment. But there’s no easily accessible way to test impairment, so employers often still have zero-tolerance policies. Because the law is still so gray, if someone hurts someone else at work and they test positive for marijuana, the burden is going to be to show that they weren’t impaired — and that is difficult to do. Employers may want to have a philosophy of permitting employees to do what they want on their personal time, but the current testing technology makes that difficult.”

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