[420 Girl]

Medicinal use of marijuana may be enshrined in the Colorado Constitution, but that does not mean employers are obliged to accept it. That’s according to Curtis Graves, an attorney with the Mountain States Employers Council, a nonprofit consultant to more than 3,000 businesses in Colorado.

On March 2, Graves offered a primer on the subject to about 50 concerned members of the South Metro Denver Chamber of Commerce.

“You can have zero tolerance and terminate someone on the first positive test,” he said of medical-marijuana users. “You can send them to an [employee-assistance program]. You could give them three strikes, you’re out. ... As long as you’re consistent with everybody, there’s no wrong way.”

Such policies may be especially important when employees are operating dangerous equipment or have contact with the public, according to Graves. But he said the broad leeway granted to employers under the state Constitution and federal law also includes the right to be lenient.

“If someone flies at a desk like I do and is doing a good job and you have no reason to believe that the marijuana use is taking place during work hours, then there may not be any reason for you to be worried,” the lawyer said.

Medical marijuana remains ambiguous legally. Although Colorado voters approved a constitutional amendment in 2000 allowing medicinal use, any possession of marijuana is still illegal under federal law.

However, the U.S. Justice Department has said it will not prosecute legally compliant users and caregivers in the 14 states that allow medical marijuana.

Regardless of federal enforcement priorities, official prohibitions on marijuana are a chief reason why businesses can rest easily about disallowing medicinal use, in or out of the workplace, according to Graves.

For example, he said, the federal Americans With Disabilities Act, which generally requires accommodation to disabled employees, specifically does not apply to workers using drugs that are outlawed under the U.S. Controlled Substances Act.

That is the case, Graves said, even if the employee in question is using marijuana to relieve pain from advanced glaucoma, cancer or other conditions that would otherwise be covered under ADA’s protections.

Such is not to say that enforcement of a zero-tolerance drug policy is always clear and simple. Drug addiction, perhaps paradoxically, is a condition that is covered under ADA.

Even though the federal law does not apply to medical-marijuana use, ADA can have an impact on how employers deal with the issue. For example, Graves advised employers to never ask job applicants if they are medical-marijuana users.

“That is really tantamount to asking them whether they’re disabled, which we know you can’t do,” he said.

Even a drug test will not necessarily clear up the situation for an overzealous job interviewer.

“[A rejected applicant] could come back and say, ‘You claimed it was because of marijuana, but in reality, that’s a pretext. The reason you rejected me is because of my disability’” Graves said.

Further, he said, some drug-testing labs will count a positive marijuana test as a negative if the individual in question can present a state-issued medical-marijuana card, even though the legality of doing so is questionable.

“Our belief is they should not be doing that because it’s not a prescribed drug,” Graves said. “It might be a good idea to call your [lab] and ask, what’s your policy on medical marijuana?”

When science finally develops a drug test that can show immediate marijuana use — as opposed to tests that do not discriminate between current use and that which occurred weeks ago — it will be a “game changer,” Graves said.

Ironically, ADA’s restrictions are strongly bolstered by limitations placed in Section 14 in the state Constitution by virtue of Amendment 20, itself. That’s the voter-approved initiative that OK’d medicinal use of marijuana.

Article XVIII specifically states, “No patient shall engage in the medical use of marijuana in a way that endangers the health or well-being of any person.”

Most important, it also unequivocally says, “Nothing in this section shall require any employer to accommodate the medical use of marijuana in any workplace.”

The reality of such straight-forward language has been clouded by some pro-marijuana advocates, according to Graves.

“They tend to be plaintiffs’ attorneys, which means they would like the law to be more liberal toward the use of marijuana than maybe it is,” the attorney said.

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