Drug Screening in the Era of Legalized Marijuana

Can my employer fire me for legal activities while not at work?

By Judy Malmon, J.D. | Last updated on January 20, 2023

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The last several years have raised some new questions in the realm of employee drug testing. The popularity of mandatory drug screening began in the late 1980s, with the passage of the Drug Free Workplace Act, and accompanying cultural shifts toward prevention awareness in the era of Nancy Reagan’s “Just Say No” campaign. Increased productivity and reductions in workplace injuries for federal employers with drug-free policies led private companies to implement pre-employment and post-incident screening requirements. This has since become common practice. Because a particular job is not based in any recognized fundamental right and you can decline to partake in a required drug test, the law has declined to view mandatory drug testing as a violation of an individual’s right to privacy. An employer has an interest in knowing if a prospective or current employee is a risk to workplace safety based on their illegal activity, or if they may be inclined to show up for work impaired. Under some state laws, marijuana has become legalized, the question has arisen regarding whether employers should be marijuana testing for what is now a legal substance. What does an employer learn about their employee if they are engaging in legal behavior while not at work? And, for that matter, is it the employer’s business to inquire about non-work activities?

What the Law Says

Colorado law regarding workplace drug testing has effectively remained unchanged since passage of Amendment 64 in 2012, which allowed legalization of the recreational use of marijuana. That law specifically states, “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have a drug testing policy restricting the use of marijuana by employees.” Colorado law also allows for reduction or denial of workers compensation or unemployment benefits for use of non-prescribed substances that cause impairment. Furthermore, the Colorado Supreme Court determined that an employer may restrict employee use of cannabis even when prescribed for a documented medical condition. In that case, the firing of an employee of a cable company for his use of prescribed marijuana to treat a chronic pain condition was upheld when he failed a drug test. The court found that even though the drug’s use in Colorado was legal, federal law still prohibits it and thus an employer may maintain zero-tolerance for even off-duty and medical use. While the law regarding pre-employment drug screening remains clear in its support of employers, conditions in the marketplace may nonetheless herald changes in practices. One study indicated an 11 percent increase in positive testing for marijuana in 2016 over the last year. Another statistic states that one in seven adults in Colorado currently use cannabis. Testing is reflecting this trend, as 10 percent of Colorado employers reported dropping pot from its pre-employment screenings in 2016. If your employer does require job applicants and employees to submit to drug testing, or even random drug testing, there are some legal limits to their practices with respect to employment discrimination and privacy. How samples are obtained and tested, as well as how test results are handled may be subject to challenge. Additionally, while there are currently no Colorado laws restricting employers from firing positive-testing employees whose use is medically necessary, other states (Arizona, Delaware and Minnesota) have enacted such protections, and changes may be on the horizon. If you have a question about employment-related drug testing, or are concerned about how your own results have been handled, talk to a Colorado employment attorney. For more information about this area, see our overview on employment law for employees.

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