Colorado Attorney General's Office Bans Employee Marijuana Use

Under the Colorado Constitution, marijuana is legal for both medical and recreational purposes. But its use is prohibited for employees of the office of Colorado's attorney general, according to a policy revision issued right before 4/20, and workers who violate that policy either on or off the job may be fired as a result. And this approach is widespread.

"Our updated policy is consistent with the Universal State Personnel System Policy for Drug and Alcohol for State Employees," notes Annie Skinner, spokeswoman for the AG's office, in an email. "Our office has both classified and non-classified staff and the update to our policy ensures that all employees are being held to the same standards that the Colorado Department of Personnel and Administration are holding all state classified staff to."

The revision, titled "Colorado Attorney General's Office Policy," is accessible below along with the state employees' policy. The AG version was originated by Shelley Oxenreider, human resources director for the Colorado Department of Law, reviewed by Chief Deputy Attorney General Melanie Snyder and approved by Attorney General Cynthia Coffman, a gubernatorial candidate until this past weekend, when she failed to make the ballot at the Colorado Republican Party state assembly. The revision's effective date is April 16. A source tells Westword it was distributed to staffers on April 19, one day before the 4/20 activities around town.

The first mention of marijuana appears under a section headed "Prohibited Conduct." The passage in question reads: "The term 'prescription drugs' does not include a recommendation or 'prescription' for use of medical marijuana, as the use of marijuana by covered workers is prohibited. All covered workers are prohibited from testing positive for metabolites of substances that are listed in the schedules of the Federal Controlled Substances Act and the State of Colorado Controlled Substances Act, with the exception of prescription drugs."

Although Colorado allows adults in the state to use and possess limited quantities of marijuana for medicinal and/or recreational purposes, the substance remains illegal at the federal level. And the next paragraph of the policy makes it clear that the Colorado Attorney General's Office is giving precedence to federal rather than state policy.

The section begins: "Although the Colorado Constitution decriminalizes certain activities related to the possession and use of marijuana, Colo. Const. art. XVIII, §§ 14, 16, such activities remain illegal under federal law and are thus considered unlawful and in violation of this policy. See Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015) (holding marijuana use is unlawful under federal law and employee may be terminated for medical marijuana use consistent with the Colorado Constitution)."

The case referenced involves Brandon Coats, a paralyzed medical marijuana patient working for DISH Network. Coats, who never used cannabis at work and consistently received exemplary job-performance reports, sued in 2012 after being fired for a positive marijuana test. Three years later, the Colorado Supreme Court ruled against him. The key part of its opinion reads: "The statute protects only 'lawful' activities. However, the statute does not define the term 'lawful.' Coats contends that the term should be read as limited to activities lawful under state statute. We disagree. We find nothing to indicate that the General Assembly intended to extend section 24-34-402.5’s protection for lawful activities to activities that are unlawful under federal law."

According to the AG's policy revision, "covered workers are prohibited from manufacturing, distributing, dispensing, possessing, transporting, using, selling, transferring, or being under the influence of marijuana at all times. The prohibition of using marijuana applies to all covered employees at all times, meaning both work time and off-duty personal time."

Potential punishment is covered in a segment dubbed "Consequences of Violations of This Policy." An excerpt: "Failure to timely report any alcohol or drug related charge or arrest, confirmed positive tests for alcohol impairment or drug use, refusal to submit to a drug or alcohol test, or any other violation of this policy or the procedures set forth herein, may result in corrective and/or disciplinary action up to and including termination. Such action will be handled in accordance with Department of Law policy, and for classified employees, applicable State Personnel Board Rules."

In 2014, when Mitch Morrissey was Denver's district attorney, his office pushed a similar policy prohibiting employees from consuming marijuana, and also warned against any family ties to the marijuana business. "Notwithstanding Colorado Constitutional Amendments 20 and 64, marijuana remains illegal under federal laws," it noted. "The use, possession, cultivation or sale of marijuana by employees, on or off duty, is strictly prohibited."

Click to read the April 2018 revision of the Colorado Attorney General's Office Policy and the Universal State Personnel System Policy for Drug and Alcohol for State Employees.

Update: This story was updated at 5:32 a.m. on April 20 to include a comment from the Colorado Attorney General's office and a link to the Universal State Personnel System Policy for Drug and Alcohol for State Employees.