ASPEN OFFERS MARIJUANA SEMINAR

ASPEN, Colorado -- Employers who came seeking clarity on Colorado's
medical marijuana laws Thursday in Aspen may have come away with only
a slightly less hazy understanding of the issues.

The constitutional amendment that allows medical marijuana use in
Colorado has yet to be challenged in court on various fronts,
attendees were told at a seminar hosted by the Aspen Chamber Resort
Association and workers compensation insurer Pinnacol Assurance. In
addition, state lawmakers are still arguing over how to regulate the
burgeoning industry.

Two simple rules, however, are clear, said Glenwood Springs attorney
Daniel Wennogle: Employers are not required to accommodate medical
marijuana use in the workplace and it can't be used in a way that
endangers the health or well-being of another person.

The term "workplace" may extend to a customer's workplace, serviced
by an employee, as well, but that's among the many questions that
remain unresolved, he said. There is much that has yet to be tested
in court, eventually creating a body of law that will help guide
employers and employees.

While it's clear an employee can be barred from smoking marijuana
while operating a forklift, for example, the trickier question is
what recourse an employer has when a worker uses medical marijuana at
home, but is still potentially under its influence at work.

"That's where the picture is not black and white," Wennogle said.

Colorado's Anti-Discrimination Act allows an employee to bring a
discrimination suit if he or she is fired for a lawful activity
committed off the premises during nonworking hours. Medical marijuana
is illegal under federal law, but permitted by the state. Whether the
user is protected under the state act is yet another issue that
remains untested in Colorado courts.

On the other hand, the act contains an exemption that could allow
employees in certain occupations to be fired for off-site use that
results in a positive test for marijuana on the job, Wennogle told the group.

But, even the testing is subject to challenge. Employers who have
written policies on drugs need to make sure the language of the
policy accomplishes their goal, he advised.

"Depending on the arena you're in, the wording of the policies can be
important," he said. "To just throw some magic sentence in there and
think you're covered is a dangerous approach."

Prohibiting workers from being under the influence of a drug at work
versus having no trace of a drug in their system are two different
things. An employer who fires an employee for being under the
influence needs a defensible definition of "under the influence" and
a testing protocol to prove the worker violated the policy, Wennogle said.

There are cases in other states with laws similar to Colorado's
constitutional amendment in which firing an employee after a positive
drug test for marijuana was upheld in court, he added.

"So, employers do have a body of law from other states that should be
persuasive on how our state should go, but there's no guarantee,"
Wennogle said.

Employer liability, marijuana user confidentiality and
landlord-tenant issues were also addressed in a handout given to
attendees at the session.

Fifty people registered to attend, but slightly more than half that
number took a seat in the Aspen Square Hotel conference room for the
presentation.

Employer Barry Cryer, who said he has a "zero tolerance" policy for
drugs in his company, Telephone Systems Consultants Inc. of
Carbondale, said liability was his focus.

"My concern is my exposure," said Cryer, who planned to have an
attorney look over his company's drug policy after listening to Wennogle.

"I don't know where to draw the line," said Trish Hirsch, in human
resources at Frias Properties in Aspen. She said came to the
presentation seeking clarity on the issues.

"If they do it at six in the morning, before they come to work, is
that OK?" she pondered before the talk began.

The answer, according to Wennogle, isn't as simple as yes or no.