Last updated : December 23, 2024
When Colorado passed Amendment 64 on November 6, 2012, the Centennial State became the first state in the country, alongside Washington, to legalize the use of recreational marijuana (up to one ounce) and the cultivation of the cannabis plant (up to six) for adults age 21 and above. It basically regulated marijuana in the same way that alcohol is regulated. The news was greeted with cheers and applause by tens of thousands of marijuana users all across the state, while causing tremendous concern among employers.
For Denverites, the passing of the ballot measure and its subsequent codification into law raised the prospect of a more carefree enforcement of legal drug consumption (in particular, marijuana), especially in the workplace. As it turn out, this couldn’t be further from the truth, because working in Colorado does not exempt any employee from the drug policy set forth by their employer—even though the status of marijuana has changed in the state.
Drug testing in Denver
In Denver, employers are performing drug tests on their employees in greater numbers. For employers, it’s about keeping the workplace safe and for some it is also about adhering to federal laws, especially if their company receives any federal grant money, does any work for the Department of Defense, or us regulated by the Department of Transportation. So while Amendment 64 did change how marijuana is regulated in Colorado, it did not change workplace policies regarding the drug. It is the workplace drug testing policy that comes into play when a drug test is deemed as necessary. Therefore it is imperative that employees know and understand the drug policy set forth by their employer. They also must be fully aware of any changes that have been made to the company’s drug testing policy.
The laws as they stand now
Federally, marijuana is still considered an illegal substance. Under the Controlled Substances Act (21 U.S.C. § 812), marijuana (or rather, marihuana according to the U.S. government) is classified as a Schedule I drug together with other infamous substances like heroin, methamphetamine, and LSD. For those unaware, substances categorized under Schedule I are deemed as having no accepted medical use and possessing a high potential for abuse. However, in 2009, former President Barack Obama instructed the Department of Justice to issue a memorandum which advises federal prosecutors against spending federal resources on drug use that complies with state laws.
In other words, the federal government was instructed to look the other way against any potential violation of federal laws as long as no state laws were broken. Since then, the DEA and U.S. attorneys have given states a high degree of prosecutorial freedom in cases involving marijuana use and sale (although things appear on the verge of changing based on a comment by former White House press secretary Sean Spicer, who hinted at a greater level of enforcement of federal drug laws).
Nevertheless, for employees of Denver and other major cities in Colorado, it may be thought that the absence of any state statutes or laws regulating workplace drug testing for private companies appear to be another shield against institutionalized drug testing programs. Again, this couldn’t be further from the truth. Employers can enact company-wide drug tests, including pre-employment drug testing and random drug testing, as long as they comply with the following requirements:
(i) Companies must have a written drug policy which takes into consideration existing state laws such as Employment Security Act, workers’ compensation laws, Anti-Discrimination Act and American Disability Act, among others. The policy must also comply with other laws by industry-specific agencies such as the Occupational Safety and Health Administration (OSHA).
(ii) Employers have provided employees copies of their policy, and the latter must provide written consent of such policy ie the employee must sign the policy that the workplace adheres to.
(iii) All employees working in safety-sensitive positions in the transportation industry must comply with the drug testing policy of the Department of Labor.
In addition, federal contractors or recipients of federal grants must maintain a drug-free working environment, which indirectly compels such organizations to conduct drug testing on their employees. It goes without saying that consumption and sale of marijuana on federal grounds, properties and lands, such as courthouses and national parks, will bring down the considerable wrath of the federal government. Those who consume marijuana will certainly want to think twice before they engage in selling or smoking the drug on any federal property.
In short, employers in Denver who have ticked all the boxes for their drug testing policy are well within their rights to fire employees who refuse to partake in a drug test, as well as any who fail a drug test. Colorado’s amendment 64 did not change the fact that employers want a safe working environment and if an employee does not agree to take a drug test that is in itself reason enough to warrant termination.
