With the passage of Amendment 64 in Colorado and Initiative 502 in Washington, the issue of dealing with marijuana in the workplace gets hazier for employers in those states. Prior to the votes on November 6, 2012, both Colorado and Washington had laws allowing the use of medical marijuana. Despite those medical marijuana laws, as well as similar laws in other states, courts across the country have repeatedly concluded that employers are not required to accommodate employees being under the influence or using medical marijuana at work and that employers can still take disciplinary action against employees testing positive for marijuana. We have reported on these issues to you previously in our Employment Law Perspectives and Weekly Updates on September 24, 2012 and June 4, 2012. The voters in Colorado and Washington went a step further than other states and made recreational use of marijuana legal. The exact extent of the impact to employers based on these recent votes is yet to be seen. Guidance from the courts is likely to take some time. So what are employers in Colorado and Washington to do now that recreational marijuana use is set to be legalized under their state laws?

First, employers should continue to focus on the employee’s conduct while at work. If the employee is under the influence or using marijuana at work, the new laws are unlikely to protect them from discipline. Similarly, while alcohol is legal for recreational use, employers can still prohibit employees from showing up drunk or consuming alcohol at work.

Second, employers should remember that marijuana remains prohibited under federal law. Even with Colorado’s “Lifestyle” law that prohibits employers from disciplining employees for engaging in lawful conduct while off-duty, federal law still makes the use of marijuana unlawful. Until a court decides otherwise, employers in Colorado and Washington should continue to treat marijuana use and testing in the workplace just as they did prior to the votes on November 6. However, employers in Colorado and Washington should keep an eye on developments in this area, especially if the federal government decides to weigh in on the issue.