Pubdate: Fri, 30 Apr 2010
Source: Glenwood Springs Post Independent (CO)
Copyright: 2010 Glenwood Springs Post Independent
Contact: http://drugsense.org/url/ys97xJAX
Website: http://www.postindependent.com/
Details: http://www.mapinc.org/media/821
Author: Janet Urquhart

ASPEN OFFERS MARIJUANA SEMINAR

ASPEN, Colorado -- Employers who came seeking clarity on Colorado's 
medical marijuana laws Thursday in Aspen may have come away with only 
a slightly less hazy understanding of the issues.

The constitutional amendment that allows medical marijuana use in 
Colorado has yet to be challenged in court on various fronts, 
attendees were told at a seminar hosted by the Aspen Chamber Resort 
Association and workers compensation insurer Pinnacol Assurance. In 
addition, state lawmakers are still arguing over how to regulate the 
burgeoning industry.

Two simple rules, however, are clear, said Glenwood Springs attorney 
Daniel Wennogle: Employers are not required to accommodate medical 
marijuana use in the workplace and it can't be used in a way that 
endangers the health or well-being of another person.

The term "workplace" may extend to a customer's workplace, serviced 
by an employee, as well, but that's among the many questions that 
remain unresolved, he said. There is much that has yet to be tested 
in court, eventually creating a body of law that will help guide 
employers and employees.

While it's clear an employee can be barred from smoking marijuana 
while operating a forklift, for example, the trickier question is 
what recourse an employer has when a worker uses medical marijuana at 
home, but is still potentially under its influence at work.

"That's where the picture is not black and white," Wennogle said.

Colorado's Anti-Discrimination Act allows an employee to bring a 
discrimination suit if he or she is fired for a lawful activity 
committed off the premises during nonworking hours. Medical marijuana 
is illegal under federal law, but permitted by the state. Whether the 
user is protected under the state act is yet another issue that 
remains untested in Colorado courts.

On the other hand, the act contains an exemption that could allow 
employees in certain occupations to be fired for off-site use that 
results in a positive test for marijuana on the job, Wennogle told the group.

But, even the testing is subject to challenge.  Employers who have 
written policies on drugs need to make sure the language of the 
policy accomplishes their goal, he advised.

"Depending on the arena you're in, the wording of the policies can be 
important," he said. "To just throw some magic sentence in there and 
think you're covered is a dangerous approach."

Prohibiting workers from being under the influence of a drug at work 
versus having no trace of a drug in their system are two different 
things. An employer who fires an employee for being under the 
influence needs a defensible definition of "under the influence" and 
a testing protocol to prove the worker violated the policy, Wennogle said.

There are cases in other states with laws similar to Colorado's 
constitutional amendment in which firing an employee after a positive 
drug test for marijuana was upheld in court, he added.

"So, employers do have a body of law from other states that should be 
persuasive on how our state should go, but there's no guarantee," 
Wennogle said.

Employer liability, marijuana user confidentiality and 
landlord-tenant issues were also addressed in a handout given to 
attendees at the session.

Fifty people registered to attend, but slightly more than half that 
number took a seat in the Aspen Square Hotel conference room for the 
presentation.

Employer Barry Cryer, who said he has a "zero tolerance" policy for 
drugs in his company, Telephone Systems Consultants Inc. of 
Carbondale, said liability was his focus.

"My concern is my exposure," said Cryer, who planned to have an 
attorney look over his company's drug policy after listening to Wennogle.

"I don't know where to draw the line," said Trish Hirsch, in human 
resources at Frias Properties in Aspen. She said came to the 
presentation seeking clarity on the issues.

"If they do it at six in the morning, before they come to work, is 
that OK?" she pondered before the talk began.

The answer, according to Wennogle, isn't as simple as yes or no.
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MAP posted-by: Richard Lake