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Grappling Once Again with Marijuana Use Laws

January 9, 2018

Attorney General Jeff Sessions’ new policy allowing federal prosecutors to crack down on the marijuana industry might have left some business owners confused about what to do next about their workplace policies. Others might have been relieved.

The move will let federal prosecutors decide how aggressively to enforce federal marijuana law.

Reaction in Colorado (and in many other states that have legalized recreational marijuana use) wasn’t exactly what the White House might have hoped for.

“This reported action directly contradicts what Attorney General Sessions told me prior to his confirmation,” Republican Cory Gardner posted on Twitter. “With no prior notice to Congress, the Justice Department has trampled on the will of the voters in CO and other states. … This must be left up to the states.”

Sen. Gardner wasn’t alone; in fact, the majority of Colorado’s congressional delegation came out in opposition.

The cannabis industry, understandably, was left awash in uncertainty, if not anger. Most of us, of course, aren’t in that business. Yet whether you believe Sessions acted sensibility or not, the action does raise questions anew for employers.

Primarily, these questions center on about workplace drug-screening and substance abuse policies.
Employers that had decided to tolerate any marijuana use might now want to revisit their thinking. Marijuana remained a Schedule I drug under the federal Controlled Substances Act and now that enforcement is a possibility, it’s hard to ignore the risk of prosecution, however remote.

What the Sessions announcement didn’t change is that, even in a state like Colorado that allows recreational marijuana, employers can fire employees for use, possession or impairment at work. Having a marijuana certificate doesn’t shield an employee from termination.

More to the point, employees facing disciplinary action for marijuana-related conduct may now have even more trouble getting any help from the courts. That should give employers solace.

Employees, meanwhile, should understand that, even before the new stance from the fed, they couldn’t and can’t come to work high.

That’s obviously a relief to many employers.

Also, required drug testing for some workers, including truck drivers and others in transportation, will obviously remain in place. The point for employers who might have been lax about testing before is, it would be best to get religious about it pronto.

Also, at a minimum, companies should review their current polices, make sure their managers are trained and make clear to employees that marijuana use on or off the job can still land them in trouble.

For those who might have preferred things left unchanged, Gov. John Hickenlooper did indicate his approach to regulation would remain constant, despite the decision from Sessions.

“Our focus will continue to be the public health and public safety of our citizens. We are expanding efforts to eliminate the black market and keep marijuana out of the hands of minors and criminals. (The) decision does not alter the strength of our resolve in those areas, nor does it change my constitutional responsibilities.”

Hickenlooper’s term, of course, is soon up, so it’s impossible at the moment to know how his successor might feel about legalization.

Scott Asbury is a CCIG Senior Relationship Manager. Reach him at or 720-212-2048

CCIG is a Denver-area insurance brokerage with the full-service capabilities of a national brokerage. We do more than make sure you have the right policy. We also help you manage your long-term cost of insurance with our risk and claims management expertise and a commitment to service excellence.

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