Sunday, January 5, 2014

The Potential Onslaught of Pot: How Texas Employers Can Prepare For the Impact of Colorado's New Recreational Marijuana Law

In December 2013, the State of Colorado legalized the recreational use of marijuana.  Portland, Maine and Washington State have done the same, and several cities in Michigan have voted to legalize the possession of up to one ounce of marijuana for use on private property.  Other states face similar ballot initiatives.  

January 1, 2014 was the first day marijuana could be sold to anyone over the age of 21 from specially-licensed stores in Colorado.

The recreational use of marijuana remains illegal in Texas.

The citizens of Colorado amended their constitution to permit recreational marijuana use.  Below is a summary of key provisions and enforcement information:
  • according to the constitutional amendment, marijuana is to be regulated in a manner similar to alcohol;
  • a Colorado resident, 21 years of age or older, may possess, use, display, purchase, or transport (although not across state lines) marijuana accessories, and up to one ounce of marijuana, for any purpose (although nothing prevents a person from purchasing the legal limit at multiple stores in one day);
  • identification "to determine a person's age" will be required;
  • the sale, distribution, or transfer of marijuana to minors remains illegal;
  • non-residents may purchase up to 1/4 ounce of marijuana;
  • smoking marijuana in public places, including in shops where the product is purchased, is prohibited;
  • smoking marijuana is permitted on an owner's private property with the owner's permission;
  • counties can choose not to allow recreational marijuana in stores in their local jurisdictions;
  • nothing in the law requires an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace, or affects the ability of employers to have policies restricting the use of marijuana by employees;
  • driving under the influence of marijuana remains illegal;
  • to protect individual privacy, the Colorado Department of Revenue cannot require the collection of personal information regarding drug purchasers;
  • the City of Denver has decriminalized the use of marijuana by individuals between the ages of 18 and 21.  Those individuals may be subject to a fine, but not jail time, for the use or possession of one ounce or less of marijuana;
  • the new law does not impact Colorado's existing medical marijuana law;
  • according to a recent CNN report, the Denver International Airport has advised it is against airport rules to carry marijuana through the airport, although TSA officers will not undertake specific searches for marijuana in carry-on bags or in travelers' pockets; and
  • in August 2013, the United States Department of Justice, in a Memorandum from the Office of Deputy Attorney General, advised it would focus its investigative and prosecutorial resources on drug issues unrelated to the personal, recreational use of small amounts of marijuana.
With the new law, vacationers, and more specifically, your employees, may now find the snow of Denver or the slopes of Telluride more enticing than the sands of Miami's South Beach.  

Considering the absence of physical barriers to prevent the transport of marijuana from Colorado and other states that permit its recreational use, as well as the federal government's position on its enforcement priorities, Texas employers should expect an increase in issues related to substance abuse in the workplace.

What can Texas employers do to prepare?

1.  Implement a Drug-Free Workplace Policy.  If you already have one in your handbook, review it to ensure it has kept pace with the changing times.  For example, does it address the use of synthetic drugs, such as K-2, Spice, and Bath Salts?   Does it address the consequences for the possession or sale of unlawful substances on employer property?

2.  Implement a Drug Testing Policy.  A comprehensive policy should, for example, permit random, post-accident, and reasonable suspicion drug testing, clearly define prohibited substances, explain the testing process and consequences for failures, such as the failure to comply with testing procedures, and specifically require written, employee acknowledgment.  Employers should also make arrangements with convenient, established testing facilities.

3.  Implement a Background Check Policy.  Determine the information you wish to consider, when you wish to consider it (pre-hire?  At the time of promotion?), and understand how to use the information without running afoul of current EEOC Guidelines, the Fair Credit Reporting Act, and any other, applicable laws or regulations.

4.  Implement employee and manager training regarding your policies.   Ensure your employees are familiar with your drug policies and the consequences for violating them, and maintain documentation of training dates, topics addressed, and attendees.

5.    Enforce drug policies in a consistent manner.  Follow your policies and don't play favorites.  Thoroughly document drug-related issues and investigation results, and retain testing records in separate medical files.

Through policies and training, employers should make it clear that the legalization of recreational marijuana use in other states will not excuse drug policy violations in Texas.