Thoughts of Colorado's legalization of recreational marijuana leads to an Iowa drug testing reminder

Russ Samson Iowa Employment & Labor Law Dickinson Law Firm Des Moines Iowa

Posted on 01/14/2014 at 03:02 PM by Russell Samson

Readers of Doonesbury and current event watchers  are aware that, by virtue of a ballot-initiative amendment to the Colorado state constitution, as of January 1, 2014, the production and the sale of marijuana for recreational (as opposed to merely medical) use is legal in the state of Colorado.  The constitutional amendment what is now Article XVIII, Section 16 of the Colorado constitution is, at least in my opinion (although not by my standards), lengthy. 

That may explain why some assert that the following provisions applicable to employers are buried: (6) EMPLOYERS, DRIVING, MINORS AND CONTROL OF PROPERTY. (a) Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees. ******** (d) Nothing in this section shall prohibit a person, employer, school, hospital, detention facility, corporation or any other entity who occupies, owns or controls a property from prohibiting or otherwise regulating the possession, consumption, use, display, transfer, distribution, sale, transportation, or growing of marijuana on or in that property. [Emphasis added.] Employees on a Rocky Mountain high at work in Colorado may find themselves unemployed. 

Colorado's state constitution notwithstanding, there are also federal criminal sanctions in place at the present time prohibiting growing, using, possessing, intending to sell and selling marijuana.  If Iowa ever legalizes the recreational use of marijuana with the same language Colorado used, private employers in Iowa would still be able to test applicants and employees for marijuana and take action on the basis of confirmed positive test results. Educated employers are aware that marijuana metabolites can remain in the human body for weeks and that drug tests cannot determine exactly when marijuana was ingested.  It seems like this is a good time to remind Iowa employers that Iowa's private sector drug testing statute  Section 730.5 of the Iowa Code (2013)   does require that there be a written policy, which has been provided to every employee subject to testing, and is available for review by employees and prospective employees.  The statute is very complex and also requires things like annual training of certain personnel.  The New Year is a good time for Iowa's private sector employers who conduct drug testing to review their compliance with Iowa's statute.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Russ Samson


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