Colorado’s Governor, Jared Polis, has just issued an executive order meant to protect consumers of both recreational and medical marijuana. It’s called “D 2022 034: Protecting Colorado’s Workforce and Expanding Licensing Opportunities.”  “I took action to protect the individual freedom and rights of Coloradans,” said of his order.  With it in effect, Polis has stated that Colorado will not cooperate with investigations from out of state looking into marijuana-related disciplinary action against holders of professional licenses, certifications, or credentials if the incident the person is being disciplined for is legal in Colorado. 

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“No one who lawfully consumes, possesses, cultivates or processes marijuana pursuant to Colorado law should be subject to professional sanctions or denied a professional license in Colorado,” the Governor’s order states simply. “This includes individuals who consume, possess, cultivate or process marijuana in another state in a manner that would be legal in Colorado.” 

The Details

The order would be applicable to private business owners, out-of-state regulatory agencies and licensing bodies, and criminal investigators. That’s a big deal, as it means even people convicted of marijuana crimes could still get licensed in Colorado when they couldn’t elsewhere, provided that offense would have been expunged under Colorado’s 64th Amendment, which legalized recreational marijuana. Even with a low-level marijuana conviction on one’s record, the applicant could still have the opportunity to get a professional license for things like the cannabis industry, gambling industry, legal services, and education. Marijuana offenses can wipe out a person’s Commercial Driver’s License too, so those people could find work in Colorado. 

Workforce Shortage

One argument the Governor makes is that Colorado is struggling to keep employees locked down. 

“There is a workforce shortage in Colorado. Employers are having difficulty recruiting and retaining qualified employees, many of whom need professional licenses. The exclusion of people from the workforce because of marijuana-related activities that are lawful in Colorado, but illegal in other states, hinders our economy and our State,” the executive order argues. 

The state has been trying to find new ways to deal with that shortage. In June, the Colorado Department of Labor and Employment’s Office of the Future of Work announced nearly $1.2 million in grant funds to go toward apprenticeship programs. The Department expects to add another funding cycle early in 2023 and is making a point to provide ongoing technical assistance.  However, the Department of Regulatory Affairs hasn’t made clear whether marijuana offenses have been a major hindrance to the Colorado workforce and whether it’s a common problem that marijuana convictions affect licensing in the state. That makes it hard to gauge how many people in the state this order will immediately impact. Federal labor reports also show drug testing rates from employers in the United States have fallen considerably, and the types of drugs employers pay attention to have shifted as marijuana becomes legal across more and more of the country. 

Out-of-Staters

The larger change, the Governor predicts, will be the attraction for out-of-state workers to come into Colorado to share their talents. Governor Polis says this will bring in, rather than deter, qualified professionals from pursuing their desired careers within Colorado. 

a group of people look out over a beautiful lake in the mountains in Colorado, with green trees and snow covered mountains This order will give out of staters a chance to start fresh in Colorado.
Photo Credit: Shutterstock
The order is not a “Get Out of Jail Free” card and does not encourage criminals to flock to Colorado to avoid prosecution. If the state is bound by court order, state agencies will still comply. The order also doesn’t help out anyone convicted of or under investigation for offenses involving marijuana that remain illegal within Colorado, such as selling to minors, cultivating en masse, trafficking, and so on. 

How We Got Here

Colorado was the first state to legalize marijuana, and in 2012 voters chose to regulate it similarly to alcohol. The Centennial State allows adults over the age of 21 to buy up to one ounce of marijuana at a time and possess up to two ounces on their person at any given time. Recreational marijuana has a 15% point-of-sale retail sales tax, and a 15% excise tax is added to wholesale marijuana prices between cultivators and retail businesses. Public consumption, be it through smoking, vaping, or eating, is illegal. Property owners like landlords and hotels can still ban its use on their premises as well. And Colorado’s law, at the moment, still states that employers can still test for marijuana “and make employment decisions based on drug test results.”  This executive order comes after lengthy and heated debate in Colorado. Lawmakers tried to pass a consumer employment protection bill for marijuana users, but it was knocked down by a House committee in March. 

two people look at a document, with a gavel next to them A bill that would protect cannabis consumers in Colorado was not passed early this year. Photo Credit: Shutterstock
That bill would’ve protected workers who use marijuana in their free time, as well as providing a pathway for medicinal cannabis users to access and use their prescription marijuana at work. There were lengthy debates about the language of the proposed law, which did include provisions and exemptions for workers whose marijuana use could represent a conflict of interest, or for those whose use would stir up trouble with a “bona fide occupational requirement.” As in, not everyone can be high on the job, even if the cannabis comes from a prescription – e.g., prescription opioids also have warnings not to operate heavy machinery while you’re on them.   The new executive order affects the state’s Department of Regulatory Agencies, the Colorado Department of Revenue’s Specialized Business Group and Marijuana Enforcement Division, which now bear the responsibility to put it into place. The Department of Regulatory Affairs oversees professional licensing for nearly 1 million Coloradans across 50 or more different sectors. The Business Regulatory Division of the DOR is responsible for oversight of gaming, horse and auto racing, the liquor industry, and tobacco, on top of marijuana.  The marijuana industry is responsible for over 40,000 jobs across the state of Colorado and has brought in over $2 billion in tax revenue since sales began in 2014. Marijuana sales have continued trending upward for years, although they’ve leveled out a bit since a 2020 mid-pandemic peak. Adolescent marijuana use, however, has been declining — another win for the state. Colorado has tight regulations on marijuana advertising that could have played a role in that success.