Part 1 – Marijuana…The Legal Debate

By Harold C. Patin, CPP and Alicia Patin Bouchon

Times change and with them, many other things do as well. The marijuana legal debate is currently underway and armed with some facts and skewed with plenty of banter funneling through the media, political action committees, lobbyists, and many marijuana enthusiasts. The current marijuana situation is causing much confusion especially as it relates to businesses, their drug testing policies and safety overall. The current debate questions whether marijuana is legal, or illegal; is it a medicine or is it a toxic substance.

Exacerbating the debate, questions now arise whether an employer can prohibit this substance or if an employer is allowed to conduct marijuana drug screening in the workplace. Current events in many states have made this a confusing subject.

Therefore, it is necessary to spell out some facts to help your company decide how to handle the issue today, under the current laws and regulations governing workplace programs, DOT mandated employers and workers, and various state and local laws.

REGULATION HISTORY 

The Controlled Substances Act, Title 21 USC 840, et seq., passed in October 1970’s the Federal law controlling the sale, possession, distribution, manufacture or cultivation of all controlled dangerous substances (CDS). This law created five (5) Schedules for these substances. Marijuana is in the Schedule 1 category. By definition, that means, it is in the highest level of control and has no currently accepted medical use. The Federal law also placed the Food & Drug Administration (FDA) in the position of deciding which drugs may have a legitimate medical use, and which drugs may shift schedules. The Drug Enforcement Administration (DEA) also holds a large responsibility in deciding the dangers of controlled substances and coordinating with the FDA. Their findings and pronouncements are the only true, and legal, way to make legislation.

STATE OF CONFUSION

States and the District of Columbia have recently decided to take matters into their own hands. However, controlled and dangerous substances are under the jurisdiction of federal and state laws. As we know, Federal law preempts state law, and this situation is no different. State laws are written, and in many cases, passed onto law. This causes a huge conflict with long standing, well-defined Federal laws, regulations and policy. By policy issuance of the U.S. Attorney General, the DEA is prohibited from interfering with states where such laws have passed to allow these exceptions. In response to this and the reduction of felony drug convictions being overturned, the Association of Assistant US Attorneys have expressed their immediate concern that such actions will have long lasting negative impacts on our communities and people. These actions, allowances, and laws are conflicting at best.

Colorado also has a local law, which holds that an employer cannot fire someone for doing something allowed by state law. The local law legality is undetermined and has not cleared the judicial system. In fact, a ruling of a higher court in the future may overturn all of this. This isn’t possible to predict. We will do our best to keep informed on this and spread the word on any decisions we learn.

One Response to “Part 1 – Marijuana…The Legal Debate”

  1. Kaley says:

    That’s a sensible answer to a challanging question

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