On November 8, 2022, voters in Colorado will vote on whether to legalize psychedelic mushrooms and other naturally occurring psychedelic drugs through a ballot initiative. Proposition 122, or the “Natural Medicine Health Act of 2022,” would decriminalize psychedelics and require the state to establish a regulated system for accessing psychedelics by those 21 years of age or older.

Background

Colorado’s Natural Medicine Act would allow the personal use of psychedelic mushrooms and certain other plant- and fungi-derived psychedelic substances by adults 21 years of age or older and allow state-regulated “healing centers” to administer the drugs. It would also establish a “Natural Medicine Advisory Board” to explore and evaluate ongoing research into psychedelic drugs and their potential health benefits and make recommendations to the legislature and other state entities.

The measure would not permit individuals to operate motor vehicles while under the influence of psychedelics or permit their use in public places, other than licensed places for such use. The measure would further reduce potential criminal penalties for those under age 21 who use psychedelics to a “penalty of no more than four (4) hours of drug education or counseling.”

The measure covers two specific substances found in psychedelic, or “magic,” mushrooms, psilocybin and psilocin, and three other naturally-based substances: dimethyltryptamine (which is also known as “DMT”), ibogaine, and mescaline (excluding mescaline derived from peyote). All of these substances remain illegal under federal law and are listed as Schedule I controlled substances under the federal Controlled Substances Act, meaning they are considered to have the potential for abuse and have no currently accepted medical use.

If the law passes, Colorado, which was one of the first states to legalize recreational marijuana, could be the second state to legalize psychedelics—after Oregon, which is set to start allowing the use of therapeutic use of the substance in psychedelic mushrooms in 2023 under a ballot measure passed in 2020.

While psychedelics remain illegal under federal law, in recent years, there has been a reexamination of, and a growing amount of scientific research on, the potential medical uses for psychedelics, particularly to treat mental health conditions such as depression, anxiety, and posttraumatic stress disorder. The U.S. Food and Drug Administration (FDA) has already reportedly designated at least two companies’ treatments derived from psychedelic mushrooms as a “breakthrough therapy” for depression. According to the FDA, the designation is usually requested by a company developing a treatment and is meant to “expedite the development and review of drugs that are intended to treat a serious condition.”

Practical Impact

For employers, the passage of Proposition 122 in Colorado could lead to increased use of psychedelic drugs across the state and complicate Colorado employers’ drug testing and drug-free workplace policies. However, the Natural Medicine Health Act specifies that it should not be construed to require employers to “permit or accommodate the use, consumption, possession, transfer, display, transportation, or growing of natural medicines in the workplace.”

It is possible that even therapeutic use of psychedelics will be treated by courts similarly to that of medical marijuana, which also is a Schedule I substance under federal law. Colorado law does not require employers to accommodate marijuana in the workplace and allows employers to enforce drug-free workplace policies even when it comes to medical marijuana use. In 2015, the Colorado Supreme Court found that an employee was not protected from discharge by an employer with a zero-tolerance drug policy under the state’s lawful, off-duty conduct protections, even though the use was outside of work and the employee had a medical marijuana license, because of marijuana’s illegal status under federal law. However, some states, including California and New York, have enacted employment protections for lawful, off-duty use of recreational marijuana.