A legal gray area for users of retail pot
Marijuana law doesn’t change much for workers, employers who do testing
As marijuana becomes legal in Durango, many large employers continue to test new hires for the drug’s active ingredient. This puts marijuana users at risk of losing their jobs for using a legally obtained substance.
The persistence of drug testing for THC is just one of the confusing aspects of Colorado’s evolving experience with legal marijuana.
Employees can still be fired for using marijuana off the clock as courts continue to give employers wide latitude in dismissing or disciplining employees for drug use.
Last year, the Colorado Court of Appeals upheld Dish Network’s firing of a medical-marijuana patient after a positive drug test. The court relied on marijuana’s illegal status under federal law for much of its reasoning. The case is now before the Colorado Supreme Court on appeal.
Brian Vicente, executive director of Sensible Colorado, said the decision to hear the case “indicates the Supreme Court is taking a hard look at this.”
Meanwhile, there have been few signs of employers moving away from drug testing, said Erik Altieri, communications director for NORML, a marijuana-advocacy organization.
“There really hasn’t been a whole lot of movement in that area,” he said. “It’s at the discretion of the employer whether or not they’re going to drug test, or what they’re going to drug test for.”
Amendment 64 states that the law does not interfere with employers’ ability to restrict marijuana use at the workplace. When employees use marijuana on their own time, that becomes a legal “gray area” with their employer, says Sensible Colorado, a marijuana advocacy group.
“The lay of the land is basically employers can really kind of have whatever drug policies they want even though marijuana is legal in Colorado,” Vicente said.
Sensible Colorado advises employees to “become familiar with your company’s drug policies and not push the envelope.”
Durango’s largest companies and public agencies take varying approaches. Some test upon hiring while others don’t test at all. Others may test employees if a worker’s behavior gives rise to suspicion of drug use.
Mercy Regional Medical Center, one of the area’s largest employers with 1,091 employees, requires pre-employment drug testing for all new hires, spokesman David Bruzzese said. Employees can be tested again for “reasonable suspicion” of drug use, or in certain post-accident scenarios.
Mercy plans no changes to its drug-testing policies despite marijuana’s changing legal status in Colorado.
Other employers, including La Plata County and the Durango & Silverton Narrow Gauge Railroad, test new hires for what are called “safety-sensitive” positions. These jobs often involve operating machinery, and, in the county’s case, law enforcement. Other employees are not tested when hired.
Fort Lewis College, with about 600 employees, does not typically drug test employees. Spokesman Mitch Davis said the college has the option to test certain employees who drive as part of their jobs, but most employees are not tested.
At Durango School District 9-R, only bus drivers are subject to pre-employment drug tests. All employees sign a form acknowledging 9-R’s drug policy, spokeswoman Julie Popp said.
The district’s policy says employees “shall be suspended immediately after arrest for possession or for being under the influence of a controlled substance.” The superintendent may reinstate the employee if it’s determined to be in the best interest of the district.
THC, unlike some other substances, can remain in a person’s system for many days, making a positive test more likely.
So what happens if a valued employee tests positive for a drug that was legally obtained?
“It is on the discretion of the company,” said Rebecca Ballesteros, office manager at Drug & Alcohol Testing Associates Inc. in Durango.
No clients of the Durango drug-testing company have asked for THC to be removed from the substances tested, Ballesteros said.
Many of the drug-testing business’ clients depend on federal funds, she said. Because marijuana remains illegal under federal law, employers that rely on federal money typically continue to require drug testing.
“Anyone that really has any sort of interaction with federal grants or funding, they’re likely going to be some of the last to change,” Altieri said. “They’re really going to stick to federal law on that regard.”