As you likely recall, in November, citizens of Colorado voted to pass Amendment 64, allowing personal use and regulation of marijuana for adults 21 and over. As the Amendment 64 task force deals with the bureaucratic jungle of the enforcement regulations and guidelines, people want to know if employers can regulate employee marijuana use off the clock. And according to the text of the amendment, they can. Some argue that employer policies could essentially nullify the effect of the amendment for everyone who’s employed. So what?
The statutory language is pretty clear and pretty broad, saying, “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession ... of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees."
So, employers get to determine if they feel like accepting marijuana use from their employees. Sounds like the type of decision typically left to the employer. Just because the state law allows something doesn’t mean an employer has to. There isn’t a Colorado law requiring that everyone wear pants in public, but most employers probably have some kind of dress code. Apples and oranges, you say? Maybe.
Throughout the legalization of marijuana debate, proponents of legalization have argued that marijuana should be treated like alcohol: regulated, taxed, and available only to those over a certain age. So, to compare fruits, what employer tells employees they can’t drink on or off the clock?
We aren’t saying it can’t happen. Just that it typically doesn’t. Employers generally don’t deal with the details of that kind of thing. As the above editorial suggests, many employers simply don’t have the time or interest to be lifestyle police. This doesn’t mean they can’t or won’t. It just means it’s rare.
What the amendment doesn’t say is that employer policies have to make sense. Sure, we’d like to think employers would create policies that are prudent and reasonable and logical, but do they have to? Aren’t they allowed to create draconian policies? After all, it’s their place of business. Their house, their rules. You just work there.
If you go out in public and make an ass of yourself in some capacity, and you can be linked back to the company, you’re probably going to face some repercussions at work. The law doesn’t require that your company has to have a policy saying “hey don’t go out in public and make an ass of yourself” for this to happen. That guy that got fired for yelling at a Chick Fil A employee probably didn’t have a clause in the employee handbook saying it was against company policy to yell at Chick Fil A employees.
And yet, most of us can agree that in some respects, that guy getting fired makes sense. So what’s the difference in that and marijuana (or alcohol) prohibition policies? Having company executives clearly and publicly display their idiocy is bad for a company’s reputation. Namby Pamby and BL1Y drinking at home and recording Blind Drunk Justice hardly merit the same concern.
So, yeah, Colorado employers can create policies that prohibit employees from using marijuana off the clock. And yeah, we’d like if they made sense. But they probably don’t have to. After all, who’s going to protest? If you don’t want to comply, they can find someone who will.
Besides, if an employer tries to take things too far, the ACLU or a pro-pot group will likely step up and challenge the policy anyway. So relax. Let the employer go nuts.