Even with the passage of Amendment 64 and the change in legal status of marijuana, employees in Colorado can still be denied employment or fired from their jobs simply for failing a urine test for THC. This is not treating marijuana like alcohol. Marijuana use, off the job and without any impairment at work, should not be grounds for termination.
With this in mind, Colorado NORML and the Colorado NORML Women's Alliance are pleased to host a special working group to address employee drug testing in the workplace. We are joined by over twenty individuals from a variety of stakeholder groups representing employers, consumers, patients, employment lawyers and civil rights organizations to form the Coalition for Drug Testing Policy Reform and bring focus, clarity and reason to this critical issue.
The goal of this group is three-fold: To draft a recommended Policy for Colorado Employers Regarding Marijuana Use and Drug Testing; to draft a proposed local ordinance that may be adopted by cities and counties; and finally, because this is of statewide concern, to encourage the General Assembly to take up this issue in light of changes to the legal status of marijuana and marijuana consumers in Colorado under Amendment 64.
A recommended Policy for Colorado Employers Regarding Marijuana Use and Drug Testing would acknowledge that drug tests alone, particularly urine tests that simply show marijuana use at some point within the last 30 days, do not reflect actual impairment on the job, and thus should not be a basis for termination. Similarly, except in certain safety-sensitive positions, a positive urine test for marijuana should not be reason enough to deny employment to an otherwise qualified applicant.
As a framework for a Proposed Local Ordinance on Drug Testing, the group will consider the City of Boulder's ordinance regarding drug testing which establishes specific criteria for when drug testing of employees is allowed, the rights of the employee and employer, and enforcement options.
The Colorado Department of Labor reported that there were 2,379,700 payroll jobs in Colorado in December 2013. It's estimated that 15% of adults in Colorado use cannabis, possibly more. At a time when unemployment rates are dropping and the Colorado economy is improving, we cannot afford to potentially disqualify more than 350,000 working adults in Colorado for engaging in legal behavior away from work.
Last week, the Colorado Supreme Court announced it will review the case of medical marijuana patient Brandon Coats who was fired from his job at Dish Network for medical marijuana use off the job. The Court might choose to reaffirm the Appeals Court’s decision that Coats' firing was lawful. However, if the Supreme Court reverses the lower court’s rulings, employers would be forced to determine that a workers’ job performance was negatively affected by marijuana before firing them.
No matter what the Court's decision may be, Colorado employers, consumers and elected officials will need education and guidance on this issue as Colorado moves forward into this new post-Amendment 64 era of legal cannabis use.
The Coalition expects to meet an additional four times over the next couple of months. In the end, we will have drafted both a recommended Policy for Colorado Employers Regarding Marijuana Use and Drug Testing and a Proposed Local Ordinance on Drug Testing. The hope is Colorado Employers will be willing to apply a reasonable approach to this very important issue, to ensure a strong Colorado workforce and a strong Colorado economy for the foreseeable future.
Rachel K. Gillette, Esq., Executive Director Colorado NORML & Co-Chair for the Coalition for Drug Testing Policy Reform, 303-665-3200
Teri Robnett, Board Member & Co-Chair for the Coalition for Drug Testing Policy Reform, 720-351-8403