August 16th, 2021

Drug Testing: What Colorado Employers Need to Know

Colorado legalized the recreational use of marijuana in 2012. In the almost decade since, Colorado employers have had to figure out what to do about employee use of marijuana, how to manage the risks, and if they should adjust their drug-testing policies.

When the law passed in Colorado, it opened up legal marijuana use to a much larger population than just the subset that had previously been allowed to use it for medicinal purposes. The law also created a whole new economy. A slew of dispensaries opened, a variety of products became available, and a booming marijuana tourism industry began to attract visitors from around the state and across the country.

Colorado, and a few others, have since paved the way for other states to legalize recreational marijuna use. But in an era of changing attitudes toward marijuana use and increasingly easier access to it, there’s still a lot to know about employee drug testing — specifically for marijuana — here in Colorado.

Background on Employer Drug Testing

According to data from testing laboratory Quest Diagnostics, in 2020, 2.7% of employee drug tests nationwide were positive for marijuana — up from 2.5% the year before. Positive drug tests overall occurred in 4.4% of U.S. workers — down from 4.5% the year before.

Quest Diagnostics also found that, on the whole, positive tests for marijuana are increasing, up 118% since 2012. In states where medicinal use is legal, positive tests increased by 68%, and in states where marijuana use is illegal across the board, positive tests still increased by 58%.

In Colorado, data compiled from a survey by the Centers for Disease Control (CDC) during 2014 to 2015 showed that out of 10,169 adult workers in Colorado, 14.6% reported marijuana use in a 30-day period. The Colorado Department of Public Health and Environment (CDPHE) published data in 2017 that found more than one in eight adult state residents aged 18 or older use marijuana.

But when it comes to employee drug testing, change appears to be on the horizon. Nationwide, only 1.47% of current job postings, on average, require pre-employment drug screening and only 0.66% mention regular drug testing, according to recent analysis conducted by the American Addiction Centers.

Here in Colorado, the drug-testing landscape is changing as well. According to data from a nonprofit organization called the Employers Council, back in 2014, 21% of Colorado companies reported stringent drug policies in reaction to legalization. But in an Employers Council survey conducted in November 2018, of the companies with drug-testing policies that aren’t compliant with Department of Transportation standards, 13% had relaxed their marijuana testing policies and 7% had dropped marijuana completely from pre-employment drug testing.

What to make of all this?

While overall drug use among workers may be down, marijuana use in particular appears to be on the rise — attributed to the fact that more states have legalized it. At the same time, both pre-employment drug screening and drug testing at work may be less of a priority now for many companies than in years past. And testing for marijuana specifically may be on the decline.

But as the landscape continues to evolve, Colorado employers should continue to re-evaluate their marijuana testing policy.

Should Colorado Employers Drug Test?

Colorado employers have the right to drug test employees. But just because you can doesn’t necessarily mean you need to. In most cases, it will depend on the occupation.  For example, drug testing for office jobs may seem unnecessary. But for jobs that are dependent on physical safety, drug testing — including for marijuana — could be critical.

An argument can be made for drug testing in industries like

  • Construction and manufacturing
  • Healthcare and life sciences
  • Education and child care
  • Aviation, transportation and logistics
  • Government and law enforcement

Potentially, any role where a person has to operate a vehicle, weapon, or heavy machinery, or is responsible for the care and safety of others should be drug tested. And in some industries, like transportation, it’s already the law.

Some fields occupy a middle ground. Even though they’re conducted largely in an office setting and physical safety isn’t much of a factor, jobs in information technology, data networking, and cybersecurity that deal with the safety and security of critical data and systems could benefit from employee drug testing as well.

Finally, with remote work more common than ever, you may decide to implement a new marijuana testing policy, or adjust an existing one. Your policy should account for employees’ work-from-home schedule to avoid any confusion.

If you’re not sure if, or who to drug test, or what the drug-testing standards are for your industry, it’s a good idea to consult with an HR and/or legal expert.

What to Consider in Your Drug Testing Policy

First, it’s important to understand that although marijuana use is legal in Colorado, it’s still illegal at the federal level. Therefore, Colorado employers can refer to federal law, rather than state law, to make decisions about marijuana use among employees and develop drug-testing policies. This is also critical for states hiring Colorado employees on a remote basis.

Beyond that, here are the basics to know about drug testing in Colorado:

  • Legally, employers can drug test employees randomly or with scheduled tests, and require pre-employment drug screening.
  • If a test result is positive — even for marijuana — employers can fire the employee or disqualify the job candidate, regardless if the person used marijuana for medical reasons or only outside of work hours.
  • If an employee is fired for failing a drug test or refusing to take one, they can’t claim wrongful termination.

One important aspect of your drug-testing policy should include how to handle job-related accidents and injuries that you suspect are the result of drug impairment. Be clear about when drug tests, including for marijuana, are required and how workers’ comp benefits may be affected.

It’s also important to think through appropriate disciplinary actions — if any — in the event an employee tests positive for marijuana but isn’t actually using it on the job. Some employers may prefer a zero-tolerance policy. But because marijuana can show up in a test up to 30 days after it was used, zero tolerance may be unrealistic. That’s because the presence of marijuana in a test doesn’t necessarily mean impairment; in fact, most drug tests aren’t able to differentiate between marijuana impairment, past use, or even a false positive.

At the same time, as job markets tighten after the pandemic, some employers could face a smaller pool of job candidates who would be able to pass pre-employment marijuana screening. Concerns about how to attract talent may be reason alone to move away from firing employees or testing job candidates for marijuana.

Regardless, it’s critical to post all information about your drug-testing policy in your employee handbook and wherever else it may be appropriate, so everyone knows the rules and is aware of the rights of both the employer and employee.

When an Employee Tests Positive for Marijuana

If an employee tests positive for marijuana, you have a right to fire them and they cannot file wrongful termination against you. If you don’t have a zero-tolerance policy toward marijuana use, then you can enforce the disciplinary action(s) outlined in your marijuana testing policy, if any.

If an employee is involved in a job-related accident or injury, here’s what you should know:

  • By law, you can require that the employee get tested for marijuana — especially if you suspect that marijuana contributed to the injury.
  • The employee is entitled to two tests. You, as the employer, are responsible for the first one, which should be done at a lab or medical clinic. The employee can get a second test using a duplicate sample taken at the lab.
  • The employee has a right to file a workers’ comp claim, regardless of the outcome of the test.
  • You don’t have to prove that marijuana was the cause of the accident or injury. The presence of marijuana is enough to presume the accident or injury was caused by employee impairment, and proving otherwise with “clear and convincing evidence” is difficult.
  • You can reduce non-medical workers’ comp benefits by half if a drug test is positive for marijuana and shows it was present at the time of the accident.
  • Since each case is unique, it’s a good idea to consult with your workers’ comp insurer or a legal expert to determine how to handle workers’ comp benefits and make sure you’re adhering to the law.

Developing a Marijuana Policy

The country, and indeed the state, is a different place today than it was in 2012. Colorado blazed a trail by legalizing recreational marijuana use. Since then, Colorado employers are starting to review and revamp their marijuana testing policies.

As more states legalize recreational and medicinal marijuana, and with more questions revolving around off-hours use versus on-the-job impairment, employee drug-testing standards will continue to evolve.

Whether you choose to test for marijuana or not, it’s important to develop a drug-testing policy that meets legal standards while also taking into consideration your unique business needs, industry, and company culture.

Now that the proverbial genie is out of the bottle, marijuana use may only become more popular in the workforce — not less. So staying on top of trends, understanding changing attitudes, and treating the issue with fairness is the best way to go. This is the case with all Colorado regulations. To learn more about other evolving laws, download our guide or reach out to us!

Download Our eGuide: New Employment Laws & Regulations for 2021

New employment laws and regulations in Colorado went into effect on January 1, 2021. Understand what the new laws mean for your business.

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