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The AR Group

Is Marijuana Legal Now? The Hazy Enforcement of Amendment 64

by Victoria Aguilar

In the November election, Colorado became one of the two states in the nation to legalize marijuana. What does this mean? Can employees light up a joint during their smoke breaks now?

First, let?s examine what Amendment 64 actually says. It permits adults 21 and older to purchase up to one ounce of marijuana from specialty marijuana dispensaries and grow up to six marijuana plants in their homes. Possession is limited to up to an ounce for personal use. However, selling marijuana without a license, purchasing marijuana from a party who is not licensed, and public use of marijuana will remain illegal.
The main enforcement problem is the conflict between Colorado?s law and the federal law. Under the federal Controlled Substances Act, the possession and use of marijuana is illegal. In the legal landscape, when a state law conflicts with a federal law on the same subject, the federal law reigns supreme. Thus, even though Colorado law provides that an individual can possess up to an ounce for personal use, the federal controls.

Since the election, several Colorado legislators have urged US Attorney General Eric Holder to stop enforcing the federal law. Colorado Governor John Hickenlooper, an opponent of Amendment 64, called General Holder in the days following the election to understand what the Administration?s stance on Colorado?s law will be. Governor Hickenlooper is still waiting.

In the meantime, US Representative Diana DeGette has introduced a bill in the United States Congress ? the Respect States’ and Citizens’ Rights Act ? that would exempt states that have passed marijuana legalization from the marijuana provisions of the federal Controlled Substances Act.

Further complicating the issue are Colorado?s medical marijuana laws. Those laws were not changed by the passage of Amendment 64, so an individual must possess a valid ?red card? to buy marijuana at a dispensary. No one can buy without a prescription, no one can sell without a license, and no one can drive under the influence of marijuana.

Where does that leave you? Can employees smoke a joint at work? The short answer is, currently, no. First, Governor Hickenlooper has not yet signed Amendment 64 so it is not technically the law in Colorado. In addition, by July 1, 2013, Colorado?s Attorney General and other government agencies will have written rules and regulations for marijuana, including how it will be sold and advertised. These regulations have to be established before marijuana can legally be sold, distributed and transported under the new law.

Moreover, if and when Amendment 64 is signed into law, an employer can still regulate the use of marijuana during work hours, and prohibit employees from being impaired on the job. Like alcohol consumption, employers can, and should, have clear and enforceable policies regarding its use and must enforce those policies consistently.

SMART TIP: The law regarding marijuana is in a state of flux right now, and new developments are occurring daily. Make sure you have the most recent and up-to-date advice by consulting with your attorney before dealing with any marijuana-related performance issues of your employees and before you make any changes to your drug and alcohol policies.