Legal Marijuana: Can Pilots, Cops, Pro Athletes Now Toke Up?

By Justin Rohrlich  NOV 12, 2012 5:10 PM

Colorado governor John Hickenlooper says, "Don't break out the Cheetos or Goldfish too quickly."



While Colorado and Washington have legalized possession of up to an ounce of marijuana by adults, the rest of the country (as well as federal law) has yet to follow. So, what does this mean for those working in these states? West Point cadets versus cadets attending the Air Force Academy in Colorado Springs? What about Frontier Airlines (NASDAQ:RJET) pilots, who hub out of Denver? Will a different set of rules apply to the Denver Broncos than do the Dallas Cowboys?

“I know that the major sports leagues have made announcements that they are not going to be changing their policies,” Mason Tvert, co-director of Colorado’s Campaign to Regulate Marijuana Like Alcohol, tells me. “The initiative explicitly states that employers can maintain their own policies.”

The Campaign’s largest individual donor is tech entrepreneur and angel investor Scott Banister, who has started and sold companies to AOL (NYSE:AOL) and Cisco (NASDAQ:CSCO), was an early backer of Facebook (NASDAQ:FB), and sits on the board of PayPal (NASDAQ:EBAY). And, though employers can set their own rules, Tvert believes they have better things to do with their resources.

“A lot of employers out there have no interest in firing their employees just because they use marijuana in their spare time,” Tvert says.

Nate Newton, a former Dallas Cowboy, told USA Today that "You cannot stop it.”

"Once the 48 (contiguous) states legalize it, what can college or pros do then -- tell players they can't do it? Come on, man. That's a joke,” Newton said.

Still, former Broncos tight end Shannon Sharpe says allowing NFL players to partake “will never happen… not in our lifetime, because of the way kids follow what NFL players do.”

Attorney Sean McAllister, one of Colorado’s leading drug policy reform lawyers, who helped frame the state’s marijuana policy, tells me that “you can’t be fired for doing something outside work that’s lawful, but [marijuana possession] is still illegal under federal law, so this has not been litigated yet, there is no precedent.”

However, McAllister confirms that nothing in the law “says employers need to accommodate marijuana.”

“You can’t be fired on the basis of race, religion, age, or sexual orientation, but states that have litigated this outside Colorado, like Montana and California, have said, ‘You don’t enjoy any special rights regarding marijuana that would prevent an employer from firing you,'" he tells me. "You have a relationship with your employer -- if they have a problem with it, you will too."

To this end, a US Navy commander who spoke to me on condition of anonymity said, “It's real simple. If you're in the service or law enforcement or private security or any other place, you still can't toke up. Basically, if you have a drug test requirement, you still do. Of course, it won't take but 48 hours or so for some sea lawyer E-3 to test the system …”

As for Nate Newton’s take on NFL policy? “The NFL has a policy against substance abuse,” McAllister says. “I believe those people will have all sorts of problems; if they don’t like it, maybe they shouldn’t work there.”

Proven Success

Regardless of how individual employers may view the latest wrinkle in state drug laws, Mason Tvert maintains that Colorado’s success in handling medical marijuana will elicit an even hand from Washington, DC, going forward.

“We already have a system of medical marijuana in place, with hundreds of legal, state-regulated business operating across Colorado,” Tvert says. “The federal government has largely respected our state’s regulation of medical marijuana, we expect they’ll do the same when it comes to the regulation of marijuana across the board.”

Indeed, Colorado’s Medical Marijuana Enforcement Division has a rigorous system in place. Each step of the growing process is monitored by video cameras, all shipments must be weighed and tracked, and each state marijuana worker must be licensed.

“The thing that Colorado really has going for it is that there is already a high level of comfort and familiarity with the state licensing, taxing and regulating the above-ground distribution of marijuana,” Ethan Nadelmann, executive director of the Drug Policy Alliance, told addiction and recovery site The Fix. “People had become accustomed to the notion that this can be a source of tax revenue, and that police can play a role in insuring effective regulation rather than just arresting anyone they could.”

The Revenues Are Real

Estimates from the Colorado Center on Law and Policy peg annual tax revenues and savings on law enforcement at roughly $60 million per year. Additionally, there would be a 15% excise tax on wholesale marijuana transactions, with the first $40 million set aside for public school construction.

Still, Colorado governor John Hickenlooper describes marijuana legalization as “a complicated process,” saying, “don’t break out the Cheetos or Goldfish too quickly.”

What’s next?

“I imagine the answer is that it will be decided in the courts,” Andy Gaus, director of MassCann/NORML, tells me. “Somebody will say ‘I’ve been wrongly terminated from my job for doing something that is not illegal or an offense of any kind. And they’ll have the law, at least partially, on their side. But I believe this will go state by state, court by court, judge by judge.”

The truth is, nobody knows. Yet.

“It’ll be interesting to see what feds are going to do,” Sean McAllister tells me. And I need to stop trying to predict things now, so…we’ll see.”

In the meantime, Frontier Airlines' job application states that applicants must submit to drug screening. However, at least one Frontier flight attendant is arguing that the tests, as they are currently devised, can yield false positives. In fact, at least one Delta (NYSE:DAL) flight attendant has been reinstated -- and won a $400,000 jury award -- when a court determined that the tests got her fired.

Follow Justin Rohrlich on Twitter: @chickenalaking
No positions in stocks mentioned.

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