SmokingIt’s now legal for recreational users to smoke marijuana in Colorado but that doesn’t mean employers have to play along.

According to the Denver Post’s marijuana editor (yes, such a job exists), smoking pot became legal on Jan. 1 after Colorado voters approved a constitutional amendment in November 2012 allowing it. The new law means it’s legal for a licensed retail establishment to sell marijuana to anyone of the legal drinking age of 21, says the website.

Marijuana is being seen as a financial boon to the Colorado state coffers. Voters approved a 20 percent levy with the first $40 million in revenue going to the state’s schools. Denver, which is where most of the pot is now being sold, adds an additional levy of 8.6 percent for a combined tax rate of almost 29 percent.

In spite of the feel-good revenues for schools, employers in Colorado don’t have to hire pot smokers. A court ruling in 2013 found that employees can be fired, even for smoking medical marijuana. The Colorado Court of Appeals ruled 2-1 that employees have no protection to use it anytime because marijuana is illegal under federal law.

Further complicating the issue for Colorado employers is whether or not to allow recreational marijuana use at work. The issue gets muddied because the Colorado Clean Air Act regulates marijuana use just like tobacco use. You can’t smoke anywhere that tobacco is prohibited in most workplaces. But, the state law says employers with three or fewer employees/volunteers who do not allow access to the public can allow smoking.

According to an article in the Wall Street Journal, “[a]head of Jan. 1, many Colorado companies have sent out company-wide reminders regarding drug-use policies. ‘They’ve put them [employees] on notice,’ Dick Mandelson, who heads up the employment law group at Baker & Hostetler LLP’s Denver office says, adding that most of his clients have formal policies regarding drug use and testing.”

The article further pointed out, “Still, some employers are steering clear of dictating workers’ recreational drug use. University of Colorado, Boulder, conducts random drug tests for transportation workers, but those in housing, facilities, the health center or the student union are only asked to submit to tests ‘upon suspicion’ of drug use, says Bronson Hilliard, a school spokesman. Suspicious activity could include impaired performance or smelling the drug on someone’s clothes. But, Hilliard says, ‘if they’re using [pot] in the privacy of their own homes, on their own time, the university really doesn’t have any interest’ in getting involved.’”

This is a problem that could be coming to your state in the near future. Washington State voters have approved a measure similar to Colorado that is still being implemented. Washington, like Colorado, will apparently allow drug testing at an employer’s discretion because federal law still prohibits the possession of marijuana. The Washington State website on the marijuana initiative adds this tidbit, “Organizations such as the NFL and NBA have issued statements that marijuana consumption is a violation of their conduct policy and they intend to continue testing for it.”

New Hampshire could be up next with its legislators voting during the session that kicks off Jan. 8 to decriminalize marijuana possession. The Marijuana Policy Project, a public advocacy group, has said it wants to decriminalize marijuana possession in Illinois, Maryland, New Hampshire, and Washington, D.C.; and end marijuana prohibition in Alaska, California, Maine, Maryland, Nevada, New Hampshire, Rhode Island, and Vermont.

What do you think? What will be your corporate policies for hiring marijuana users as well as allowing its use at work if your state legalizes it?

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