Key Points About Colorado Drug Testing Laws

Federal Law Supersedes State Law on Marijuana

Despite marijuana being legal in Colorado, it remains a Schedule I controlled substance under federal law.
Colorado employers can rely on federal law to prohibit marijuana use in the workplace and terminate employees who test positive.
The legality of recreational or medical marijuana use in Colorado does not protect employees from termination if they fail a drug test, even if they use marijuana off-duty.
The Colorado Supreme Court upheld this in Coats v. Dish Network (2015), where an employee using medical marijuana off-duty was lawfully terminated for violating federal law.

2. Impact on Workers’ Compensation Benefits

Employers can mandate drug testing following a workplace accident.
A positive test for cannabis creates a presumption that the injury was due to intoxication, potentially halving workers’ compensation benefits unless the employee can provide clear evidence otherwise.
THC can stay in the system for weeks, leading to reduced benefits for an accident unrelated to marijuana use.

3. Potential Grounds for Discrimination Lawsuits

Employees terminated for failing a drug test might still have grounds for lawsuits under certain conditions:

Invasion of Privacy: If the drug testing procedure violates privacy, such as requiring urination in front of others.
Disability Discrimination: If the employee is taking prescribed medication (other than medical marijuana) for a recognized disability under the ADA.
Protected Class Discrimination: If the employee is targeted for drug testing based on gender, race, age, sexual orientation, etc.

Employers may adopt more lenient drug policies, especially concerning marijuana use, in tight labor markets.

Legal Implications of Drug Testing in Colorado

According to Nolo, while Colorado law allows employers to conduct drug tests and terminate employees based on the results, such actions can lead to other legal claims [1].

Disability discrimination: An applicant or employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant’s medication was legally prescribed for a disability, the company could be liable (unless the drug is medical marijuana).

Other Discrimination Claims: Employers who target specific groups of employees for drug testing, such as by race, age, or gender, could be subject to discrimination lawsuits.
Invasion of Privacy: Employers must conduct drug tests in a manner that respects employee privacy. Forcing employees to disrobe or provide urine samples in public view can constitute a privacy violation.
Defamation: If an employer publicizes an employee’s positive drug test result knowing the test may be inaccurate, they could be liable for defamation. This is especially true if a retest shows a false positive or if the employee has contested the initial result.

Understanding Post-Accident Drug Testing for Workers’ Comp in Colorado

According to ILC, while Colorado does not mandate drug testing for employees outright, employers can require injured workers to undergo post-accident drug testing if a written drug policy exists [2].

Written Drug Policy: Employers do not need to suspect drug use to mandate a test; the presence of a written policy is sufficient.
Employer Responsibilities: According to Colorado workers’ compensation statutes, employers must cover the cost of any required drug tests, which must be conducted in a facility certified by the National Institute on Drug Abuse (NIDA).

Consequences of Failing a Drug Test in Colorado Workers’ Comp Cases

Positive Test Result: A positive drug test does not automatically result in the loss of all workers’ comp benefits.
Presumption of Intoxication: To reduce non-medical benefits (such as wage loss) by 50%, the employer must prove the test was conducted at a certified facility and that a second sample was preserved for re-testing.

Key Data on Employee Drug Testing and Marijuana Use

National Marijuana Use:

2020: 2.7% of employee drug tests were positive for marijuana (up from 2.5% in 2019).
Overall positive drug tests: 4.4% of U.S. workers (down from 4.5% in 2019).

Trend in Cannabis Testing:

Positive tests for cannabis have increased by 118% since 2012.
In states with legal medicinal use: Positive tests increased by 68%.
In states where marijuana is illegal: Positive tests increased by 58%.

Marijuana Use in Colorado:

CDC survey (2014-2015): 14.6% of 10,169 adult workers in Colorado reported marijuana use within a 30-day period.
CDPHE (2017): More than one in eight adults in Colorado use marijuana.

National Drug Testing Trends:

Only 1.47% of current job postings require pre-employment drug screening.
Only 0.66% mention regular drug testing (analysis by the American Addiction Centers).

Drug Testing Policies in Colorado:

2014: 21% of Colorado companies had stringent drug policies in response to legalization (Employers Council survey).
2018: Of companies with drug testing policies, 13% relaxed their marijuana testing policies, and 7% eliminated marijuana from pre-employment testing (Employers Council survey).

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References:
1. https://www.nolo.com/legal-encyclopedia/colorado-drug-testing-laws.html
2. https://www.injurylawcolorado.com/personal-injury-denver/injury-and-drug-use/

Colorado Drug Testing Laws: Employee Rights and Protections