Last updated : November 18, 2024
While recreational marijuana use is now legal in Colorado, employers still hold all the cards when it comes to creating a safe working environment. That is largely because marijuana use is still illegal at a federal level. This broader illegality works in favor of employers who are concerned about workplace safety and want to continue to enforce drug free policies. This may change over time, but it’s likely to require a great deal of it, and courts seem inclined to side with the philosophy that because marijuana use is prohibited by the federal government employers still have the right to fire employees because of marijuana use in their off hours.
It’s a philosophy that’s backed up by a recent Colorado Court of Appeals decision. A DISH Network employee, who suffers from paralysis, used marijuana in his own time and only at home. However, when a drug test revealed the use, DISH Network fired him. The former employee sued, but the court ruled that DISH Network was entirely within its rights to maintain a drug free workplace and the firing stood. It’s likely that similar litigation will be resolved in the same manner in the future.
Many employers simply haven’t been certain how to respond to the legalization of recreational marijuana in Colorado. In isolated cases, employers have embraced passage of the law, relaxing their drug policies to accommodate employees who choose to smoke marijuana at home as long as it does not interfere with their ability to work. Other employers have held steady with their existing policies. This may include testing before hiring applicants and participating in random drug testing of current employees. In these cases, the need to guarantee a safe working environment overrides the state’s legalization of marijuana.
Still other employers have actually stiffened their drug testing practices. They feel a need to be more certain than ever that their employees are not under the influence while at work. There is no drug test that can immediately reveal impairment through the use of marijuana. Test subjects may show a positive result even when they have not used marijuana within several days or even a few weeks. Accordingly, there is controversy concerning the fairness of testing for marijuana use with many employees arguing that companies are trampling on their state mandated rights.
Nonetheless, organizations owe a duty to their employees to ensure a safe workplace. It still falls within their purview to determine whether or not recreational drug use by employees is appropriate. For some industries, the answer is obvious. When federal regulations largely govern the operation of an industry, employers often have no choice about whether or not to perform drug tests. They must comply with federal law that states marijuana use continues to be illegal.
Unfortunately, many current and potential employees are unaware of this distinction. They may use marijuana for fun or for medical purposes on their own time. Because such use is legal in Colorado, they don’t expect to be barred from a new job because of a positive drug test. Similarly, they may not expect to be terminated from current employment when they test positive on a random drug screening. That’s why it’s vital for employers to take the time to discuss the new marijuana laws with their employees. It’s also essential to outline a clear drug policy that every employee should be required to review on a periodic basis. A transparent drug free workplace policy, and a dedication to random drug screening, is the best way to make certain that workers are informed of employer expectations.
Drug testing is still one of the employer’s most valuable tools for ensuring worker safety. Even with the legalization of recreational marijuana in Colorado, employers are still empowered to decide for themselves what the boundaries of drug use should be. With a comprehensive drug policy that’s backed up by testing in place, most Colorado employers are prepared to have an informed workforce and a safe place to work.
