Colorado and Washington Approve Marijuana for Recreational Use

Colorado and Washington, who are current medical marijuana states, have made history this Election Day by passing the first laws that allow for the legal use of “recreational” marijuana.  The recreational marijuana laws allow residents 21 and older to possess up to one ounce from licensed vendors, which the states plan to tax.  

• Amendment 64 Colorado: the state's constitution makes it legal for anyone over the age of 21 to possess marijuana and for businesses to sell it.

• Initiative 502 Washington: establishes a system of state-licensed marijuana growers, processors and retail stores, where adults over 21 can buy up to one ounce. It also would establish a standard blood test limit for driving under the influence.

The laws legalizing recreational marijuana will certainly face federal scrutiny. Marijuana possession is still a federal crime and employers are seeking advice on how to approach this topic. Danielle Urban, an Atlanta lawyer, interprets federal law to say “that employers are not prohibited from taking adverse actions against someone who tests positive for marijuana.”  Urban believes that bringing medical marijuana into the mix makes legal arguments unclear as many states (19 currently) permit medical marijuana use.  Other states say it's illegal for an employer to fire someone for engaging in legal, off-duty behavior.

Employers also have to take into consideration the Americans With Disabilities Act (ADA). According to Law.com - Under the ADA, “an employee fired for using pot for health reasons could file a discrimination lawsuit”. Seeking help from the U.S. Department of Justice most likely won’t yield any clarity either as the department decided in September, of 2009, not to prosecute medical marijuana users.

The Supreme Court has studied the issue twice, once in 2003 when they ruled in favor of the employer by stating that in states with medical marijuana laws, an employer can refuse to accept medical marijuana as a reasonable explanation for a positive drug test. In 2005, they solidified their support by ruling that the federal government may enforce the Controlled Substances Act's prohibition on medical marijuana against those who use the drug under state laws.

MEDICAL MARIJUANA STATES

State	Date Approved
1. Alaska	1998
2. Arizona	2010
3. California	1996
4. Colorado	2000
5. Connecticut	2012
6. DC	2010
7. Delaware	2011
8. Hawaii	2000
9. Maine	1999
10. Massachusetts	2012
11. Michigan	2008
12. Montana	2004
13. Nevada	2000
14. New Jersey	2010
15. New Mexico	2007
16. Oregon	1998
17. Rhode Island	2006
18. Vermont	2004
19. Washington	1998