When voters in Washington and Colorado voted Nov. 6, 2012, to legalize the recreational use of marijuana, it set off alarm bells for in-house counsel in those states. They peppered their outside counsel with questions about whether the new state laws jeopardize corporate zero- tolerance drug policies and drug-testing programs.
For now, it appears their concerns are largely unfounded. Employment lawyers are advising clients the laws do not require substantive changes in corporate policies because marijuana is still banned under federal law. They cite decisions by
However, court decisions involving medical marijuana use by employees suggest that plaintiffs seeking employment protection for recreational users will have an uphill climb. Two 2011 Colorado court decisions, Beinor v. Industrial Claim Appeals Office and Hall v. Direct Checks Unlimited, found that the use of medical marijuana is not lawful off-duty conduct, and employees cannot claim protection under that law.