The Basics of Amendment 20 and the Workplace

Medical marijuana is quickly becoming a pervasive issue in Colorado workplaces: the Colorado Department of Public Health and Environment, the agency charged with distributing medical marijuana cards, receives around 400 card applications daily. Although thousands of Coloradans are obtaining medical marijuana cards every year, the law is not yet clear on what accommodations employers must make.

One thing that is certain is that a medical marijuana card does not entitle an employee to use marijuana at work: employers are not required to allow for medical marijuana use on the job, nor are they required to allow a worker to be under the influence of marijuana while working. In fact, the Colorado state workers' compensation statute imposes a penalty of 50 percent loss of wages/benefits if an employee is injured as a consequence of being impaired by medical marijuana. There is an exception to the penalty for injuries resulting from physician-prescribed drugs, but it technically does not apply to marijuana, as marijuana cannot be prescribed under the federal Controlled Substances Act (Colorado doctors can advise marijuana use, but cannot write a marijuana prescription). Of course, testing rarely takes place unless there is an actual workplace injury.

Colorado courts have not yet addressed whether an employee with a valid medical marijuana card can be terminated or face other consequences for arriving at work with detectible amounts of marijuana in his or her system. It is also unclear whether an employee terminated for such use outside of working hours can raise a legal claim against his or her employer. Given that federal law recognizes possession of marijuana as a crime, courts in other states with legalized marijuana have found that employers are not required to allow use even outside of work, leaving terminated workers with little recourse. However, since the legalization scheme in Colorado arises out of an amendment to the state constitution, it may be given more weight than statutory medical marijuana laws.

Other Workers' Comp Concerns

In Colorado, the law does not require insurers to pay for medical marijuana. Additionally, setting reimbursement amounts is difficult for homegrown medical marijuana. A further challenge is presented if an employer or insurance provider is from a state that does not allow for medical marijuana use: although not required to, if they choose to pay for a Colorado employee's medical marijuana, would they be in violation of that state's laws or federal law?

The answers are far from clear, and new questions are constantly arising. Some experts are recommending that employers and workers' comp authorities should move toward treating medical marijuana more like routinely prescribed controlled drugs. This would allow the insertion of medical marijuana into an already proven workers' compensation system. But, federal resistance could impede an orderly transition.

Employer Control and Unanswered Questions

At the moment, rather than government mandates, employer-set policies seem to have the most control over how medical marijuana is handled in the workplace. Perhaps a good system of employee-employer communication and understanding underlies the relative lack of legal action in Colorado relating to medical marijuana and workers' comp. Ultimately, most workers' compensation issues concerning medical marijuana remain to be tested in Colorado courts, providing a unique window of opportunity for injured workers looking to flex their legal muscles. Only time will tell when, if, and how medical marijuana will fully integrate into the workers' compensation system in Colorado. Until then, a wide swath of uncertainty in the law will unfortunately be the status quo for employers and marijuana-card carrying employees who are facing both workplace injuries and chronic medical conditions.

Article provided by Eley Law Firm
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