That’s the biggest recommendation from the state’s Amendment 64 task force, a 24-member group charged with producing regulatory framework to allow recreational use of marijuana for adults 21 and older.
But the case for the decision is neither cut-and-dried nor binding. Many of the final recommendations are accompanied by minority opinions that also will be considered by the General Assembly.
Nearly all the major recommendations — such as whether to limit sales to Colorado residents, what the regulatory framework should be, and allowing state-run retail stores — met with argument and dissension, task force members and marijuana supporters said.
“We tackled employment and thought it would be easy, because of the language in the amendment,” said Jo McGuire, director of compliance and corporate training at local drug-testing company Conspire! and a member of the task force. “We were wrong. It was very contentious.”
While most of the task force agreed that the amendment allows employers to fire workers for using marijuana even when they aren’t on the job, a vocal minority opposed the idea.
In a minority report, opponents to the recommendation said the amendment did not leave room for prohibiting activities that occur when someone isn’t at work.
“Before Amendment 64, private employers claimed an unconditional right to ‘prohibit’ all use of marijuana by employees under the penalty of job termination,” the minority report said. “After Amendment 64, the Colorado Constitution changed the status quo by guaranteeing the ‘personal use’ of marijuana outside the workplace.”
Focus on zero tolerance
The opponents claim the amendment allows employers to prohibit use, possession or transfer while at work, but they only can have policies “restricting, not prohibiting” use by employees when they’re not at work.
“Thus, zero-tolerance employer policies prohibiting all off-duty employee marijuana use violate the express provisions of the Colorado Constitution and public policies,” the report said.
Instead, that minority group wants the state to amend employment law to exempt marijuana use from drug tests, except for employers who have to comply with safety regulations or companies
that have contracts with the federal government.
“Zero tolerance drug policies may not include off-duty marijuana use,” the minority report said. “Employers may not take adverse employment action against employees because off-duty, off-premises exercise of Amendment 64 rights, unless they can establish interference with job performance.”
The majority of the task force disagreed.
“It got heated,” McGuire said. “They said there would definitely be lawsuits.”
If there are, legal precedents show the courts won’t be in the minority’s favor.
Thus far, in states with legalized medical marijuana, courts have ruled in favor of the employer every time there’s been a lawsuit for wrongful dismissal based on use of medical marijuana.
But while some Amendment 64 proponents are against the ruling, others say it makes sense.
Joe Megysey, an attorney who lobbies for Regulate Marijuana like Alcohol, said the group supported the decision to allow companies to form their own zero-tolerance policy, and said the amendment clearly outlined that choice.
“We think the market will decide,” he said. “Some companies — those who want to attract young creative types — might change their policy and not test for marijuana use. Other companies, like defense contractors, are going to want to keep a strict drug-testing policy in place. We support the decision to let the employer decide.”
The group even promoted the idea on the campaign trail last summer, making sure that businesses knew they could enforce a zero-tolerance drug policy if necessary.
Overall, Regulate Marijuana believes the task force is headed in the right direction.
“Our sentiment is that the task force is working toward sensible compromise on really tough issues,” he said. “We’re in a good place to finish the regulatory framework.”
But it seems every solution brings up a problem that also must be solved, McGuire said. She isn’t sure the task force will have final recommendations by the Feb. 28 deadline set when the group was appointed by Gov. John Hickenlooper.
“There are things we haven’t even thought of that come up,” she said. “For instance, if someone has six plants and is arrested, the police can confiscate the plants. If the person is released from custody, if they give the plants back, are police officers transferring a Schedule I controlled substance? These aren’t easy things to decide.”
And on second glance, even issues that had seemed to be a sure thing early in the process won’t make the final recommendation.
“For instance, we all thought that the committee would recommend limiting marijuana sales to Colorado residents only,” she said. “Now, they’ve decided not to limit it. That was a surprise.”
The change, Megysey said, was because the amendment merely says “consumers” and doesn’t limit purchase to people who aren’t legal residents of the state.
“We’ve talked about limiting the amount sold,” he said. “We want to show we’re complying with concerns that black-market marijuana doesn’t show up in border states, where it’s still illegal.”
Another area of contention is state-run retail stores for marijuana. McGuire said many people felt that having the state in charge of the retail stores would create a firmer regulatory structure. But Megysey said that the problem would put state employees at risk.
“That would have set the state up for a showdown with the federal government,” he said. “The law clearly states that no state can engage in activity that conflicts with federal law. Having a state-run retail store would put state employees in a direct conflict with the federal government, and that would invite a lawsuit.”
Lack of federal guidance
The entire process is complicated because — despite repeated requests — there’s been little response from the Justice Department about how the federal government might respond to Colorado’s new law legalizing recreational use of marijuana.
Some issues can’t be solved by the task force, McGuire said, because of the silence from Washington, D.C.
“In the first week, we had a presentation from banks about why they can’t take money from marijuana companies — they’ll end up in jail for money laundering,” she said. “And some people said they should be willing to stand up for states’ rights and take that risk, do the time. [But] these are people’s livelihoods. They’re not going to jail for someone else’s cause.”
Because the task force is barred from making a final decision about banks, it recommends that the state take one of two actions.
If the federal government doesn’t respond by March 31, the task force wants the General Assembly to consider “any other lawful alternatives” to assist marijuana businesses’ efforts to access the banking system
“One such alternative would be to consider a joint resolution calling on the federal government to take action by exempting marijuana businesses in states with legalized marijuana industries from retaliatory federal regulations,” the minutes say.
“Another alternative, because the task force cannot suggest state legislation that resolves the issue, would be to authorize and fund a study by an independent policy institute with experience in banking laws and regulations to develop a proposal for a financial institution not subject to federal regulations.”
The Amendment 64 task force and subcommittees are scheduled to meet through the second week of March, but recommendations are due Feb. 28.