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The Northern Colorado Legislative Alliance took a strong position in opposition to Amendment 64 during the 2012 election cycle. Amendment 64 created a constitutional right to use marijuana, subjecting employers to questions about their legal rights and obligations in their relationship to their employees, increasing costs of doing business and creating a negative economic development perception for the state.
With its passage, Colorado businesses are now left to contend with the consequences, intended and unintended — consequences that create many more questions than answers and, invariably, can only be answered through litigation, legislative action and federal intervention.
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Contrary to federal law, Amendment 64 makes marijuana legal for anyone 21 and older, and furthermore, establishes a constitutional protection for use, rather than merely decriminalizing it, as is the case of medical marijuana.
In regard to employers, Amendment 64 purposefully states that it is not “intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”
Complicating matters further, but clearly understood by Amendment 64 proponents, Colorado already had a unique statutory protection for individuals’ activities while not on the job. The Legal Off-Duty Activities Statute (C.R.S 24-34-402.5) provides that “it shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee engaging in any lawful activity off the premises of the employer during nonworking hours.”
However, the definition of “in the workplace” in Amendment 64 creates the most questions about employer’s rights, liabilities and obligations.
“It is foreseeable,” according to the Mountain States Employers Council, “that plaintiffs’ attorneys would argue that only terminations for marijuana usage during work hours would be lawful, because usage outside of work hours would be legal, and therefore not a lawful reason for termination under the legal off-duty activities statute.”
Questions also arise about the ability of employers to utilize and rely upon urinalysis for determining usage and the impairment of employees. The half-life of marijuana can be up to 23 days and there is “currently no reliable test,” according to MSEC, “that would indicate when marijuana was ingested.”
With these questions and more, the Colorado business community is understandably concerned about its rights and obligations. What is clear in this debate is federal law. Marijuana is a Schedule I controlled substance under the federal Controlled Substances Act. Accordingly, it remains illegal under federal law.
Notably, the conflict that has arisen between federal and state law was well understood by proponents. National advocates of marijuana legalization, and those who funded Colorado’s $1.5 Million Yes on 64 campaign, sought this debate with the federal government to advance their national agenda. Unfortunately, Colorado employers bear the brunt of the liabilities and questions created.
In the face of numerous gray areas under the new state law, the black-and-white of federal law provides the clarity of law business in Colorado requires to make sound business decisions.
Consequently, the NCLA spearheaded an effort with 19 other Colorado business organizations, to take up the fight for clarity of law. This coalition of business represents thousands of businesses in Colorado, including chambers of commerce from all regions of the state, large economic development agencies, construction trade associations, general business organizations, bankers and the technology industry.
U.S. Attorney General Eric Holder and the Department of Justice have the right and authority to enforce the Controlled Substances Act in Colorado under their prosecutorial discretion. The CSA clearly states that federal law pre-empts state law when there is a positive conflict between the two jurisdictions. Furthermore, Amendment 64 violates the Supremacy Clause of the U.S. Constitution, as well as our government’s treaty obligations ratified by Congress.
In the face of national legalization proponents who are asking the Attorney General to look the other way, the coalition of business organizations have urged U.S. Attorney Holder and the DOJ to enforce federal law.
Colorado has had a well-deserved reputation as a healthy, active and productive place to locate a business and to raise a family. Notably, Forbes magazine named Colorado as the fifth best state for business just last year. It is critical that Colorado retain its position as a great place to live and do business.
Sandra Hagen Solin is the president of Capitol Solutions and issues manager of the Northern Colorado Legislative Alliance.