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Employers in Colorado Can Test Workers for Marijuana

Volume 2, Issue 1
January 15, 2014
View/Print Entire Newsletter

On January 1, the news media was filled with stories about state-licensed retail shops that began selling marijuana under Colorado’s new law legalizing pot.

Over the past several years a number of states followed California’s example of allowing sales of marijuana for people with medical conditions, a trend that continued last week when New York Gov. Andrew Cuomo moved to allow it in his state.

Several other states and the District of Columbia are tentatively feeling their way towards following Colorado’s path.

How does this affect employers? In Colorado’s case as in other states employers can continue to test their employees for marijuana and take disciplinary actions. We can only hope that as other states move towards legalization they at least follow the Centennial State’s example in this area of the law.

The Colorado law reads: “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 policies restricting the use of marijuana by employees.”

Employers may continue to enforce their drug testing policies against employees and applicants who test positive for marijuana, to enforce policies prohibiting the possession or consumption of marijuana during working hours, and to discipline any employee whose job performance is impaired because of the use of marijuana.

In December 2013, the Colorado Court of Appeals reinforced employers’ right to lawfully discharge employees who test positive for marijuana, even where the employee has a medical marijuana card and there is no evidence of “impairment” on the job.

“While medical (and recreational) marijuana use may be permitted under state law, it is still a Schedule I substance under federal law and, thus, unlawful under federal law,” said attorney Roger S. Kaplan of the law firm of Jackson Lewis. “In other words, regardless of state law, employers may follow federal law in prohibiting employee drug use.”

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