More and more community associations are being impacted in one way or another by Colorado’s marijuana laws. Most visible are the impacts from dispensaries moving into covenant controlled communities. A less obvious impact is on those associations who have employees.
Many employers have a no-drug policy which prohibits employees from using illegal drugs. The question then arises as to whether an association can prohibit the use of medical marijuana by its employees. While the use of marijuana is still illegal under federal law, its use is legal in Colorado if used for medical purposes in compliance with the law. Some attorneys argue that an association with employees could revise its employment policies to prohibit the use of illegal drugs under both state and federal law, which would then preclude the use of medical marijuana. While this is theoretically possible, it has not been attempted nor challenged, nor have the practical issues surrounding it been considered. However, if an employee is in need of medical marijuana, that employee’s underlying condition could also be protected by the ADA. In that case, the association would need to make certain they were in compliance with all laws associated with the specific circumstances.
The issue comes down the argument that once an employee is given permission to use medical marijuana, the drug is no longer an illegal drug, at least under Colorado law, and the association should treat its use by an employee like any other prescription drug an employee may take (such as pain killers). Given that, the association could allow the employee to use the medical marijuana and still be employed as long as the effects of the marijuana do not impair the employee’s ability to do his or her job. For example, if the employee has to operate machinery, and the use of medical marijuana would impair that ability, then the association could mandate that employee not be allowed to operate machinery while using the drug. Associations should also consider if the employee is covered under the ADA, then the employer may be in a position where they may be required to move the employee to a different position to accommodate the disability. This is a very complicated issue and one that needs to be carefully navigated.
Regardless, if any association is confronted with this situation, it is always advisable to have an employment policy manual and up to date job descriptions, and as always, seek advise of legal counsel or a human resources professional to determine the best course of action in light of the specific facts and circumstances of the particular case.