As a general rule, Colorado law allows your employer to test you for drugs – whether by random drug testing or a scheduled testing program. Employers may also test employees as part of the pre-employment screening process.
Furthermore, Colorado employers can fire or disqualify you if the test results show drug use, even for marijuana (THC) despite the state’s legalization of recreational and medical marijuana.
Below I discuss three things to know about Colorado drug testing laws. Also listen to our informative podcast on the subject:
1. Federal Marijuana Law Preempts State Law
Marijuana – which is a schedule I controlled substance – is illegal under the federal government. Therefore, Colorado employers may rely on federal law rather than Colorado state law for prohibiting weed in the workplace and for terminating you if you test positive for marijuana.
It makes no difference that the recreational use of pot is legal in Colorado. It does not matter if you have a medical marijuana card and consume weed only for medical use.
Nor does it matter if you never come to work high and only use marijuana while off-duty: A positive drug test is all Colorado employers need to pass over or terminate you. You have no claim for wrongful termination for being fired or disqualified for failing a drug test, or refusing to take one.
The Colorado Supreme Court in the 2015 case Coats v. Dish Network confirmed employers’ right to fire you for using marijuana. In this case, the plaintiff used medical marijuana during non-working hours and never displayed impairment at work. Even though Colorado has legalized medical marijuana, Dish Network could fire him for it because he was violating federal law.
In sum, your state right to consume marijuana is trumped by a business owner’s right to keep a drug-free workplace.
2. Employees Who Test Positive Can Lose Workers’ Comp Benefits
Employers may require drug testing following a workplace accident. Then if your drug screening test comes back positive for cannabis use, Colorado law presumes that you injured yourself from intoxication.
Unless you overcome this presumption with clear and convincing evidence, your workers’ compensation wage replacement benefits will be halved.
In reality, THC can remain in your system for several weeks following consumption. This means you can lose out on half your wage replacement benefits for an accident you did not cause if your post-accident drug tests show the presence of cannabis that you may have ingested weeks earlier.
3. Employees May Have Grounds To Sue For Discrimination
Even though Colorado employers may fire you for failing a drug test, you may still have other grounds to sue depending on the circumstances:
- Invasion of privacy, if for example you are required to urinate in front of others during the drug test.
- Disability discrimination, if you are taking a prescribed medication – other than medical marijuana – for a legally recognized disability under the Americans with Disabilities Act (ADA).
- Discrimination based on being part of a protected class, if you were being singled out for drug testing due to your gender, race, age, sexual expression, sexual orientation, etc.
Note that private employers tend to have less stringent workplace policies about zero-tolerance drug use – particularly marijuana use – during tight labor markets.
Additional Reading
For further information on Colorado employment and drug laws, refer to our articles:
- Colorado background checks – Overview of what background checks show and employee’s rights.
- Does Colorado have a Ban the Box law? – Explanation of when employers can ask about your criminal record.
- Who can see a sealed record in Colorado? – Discussion of if and when sealed records are visible.
- Colorado drug laws – Overview of state crimes re. possessing, making, or selling controlled substances.
- Psilocybin Mushroom Laws in Colorado – The latest laws on the legality of “shrooms.”
References:
- CRS 8-42-112.5
- Denver Metro Chamber of Commerce – Workers Comp Insurance
- Joe Rubino, Testing positive for marijuana won’t get you fired at more than half of Colorado companies, survey says, Denver Post (March 12, 2019)
- Mark Berman, Colorado Supreme Court says companies can fire workers for using medical marijuana in their off-hours, Washington Post (June 15, 2015).
- U.S. Department of Transportation (DOT) – Office of Drug & Alcohol Policy Compliance for alcohol testing and drug-testing policies of employees in safety-sensitive positions.
