Colorado employers would be prohibited from denying employment to or firing workers because of their off-the-clock cannabis use – either medical or recreational – under a measure introduced last week at the statehouse.
House Bill 1152 would also require employers to let their workers consume medical marijuana while on the job. The legislation would include exceptions for workers whose jobs are in dangerous fields or require fine motor skills, such as positions involving the use of heavy machinery.
“Marijuana is legal in Colorado,” said state Rep. Brianna Titone, an Arvada Democrat and prime sponsor of the bill. “And what people do in their spare time that doesn’t impact their work shouldn’t really be a problem for them. They should be able to enjoy the legal things that we have here in Colorado and not be penalized for it.”
The bill seeks to answer a workplace question that has been swirling in Colorado since voters passed Amendment 64 in 2012, legalizing the sale and use of recreational cannabis. Most states that have legalized medicinal and recreational pot leave the question over how to handle employees’ marijuana use up to employers, according to the National Conference of State Legislatures.
Nevada and New Jersey are two exceptions. In New Jersey, employers can prohibit employees from using cannabis while on the job or showing up to work impaired. But they are not allowed to penalize an employee solely because of their off-the-clock recreational cannabis use.
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In 2015, the Colorado Supreme Court sided with an employer, Dish Network, who fired an employee, Brandon Coats, who tested positive for tetrahydrocannabinol – or THC – in a random drug test. Coats had a medical marijuana card as a result of back spasms caused by his quadriplegia. Muscle spasms is one of the seven debilitating conditions for which medical marijuana can be recommended under Colorado law.
The closely watched case highlighted a contradiction within Colorado’s stance on pot: marijuana may be legal in Colorado, but using it can still be grounds for termination.
Titone and her co-prime sponsor of the bill, Rep. Edie Hooton, D-Boulder, think that shouldn’t be the case.
“The whole idea is to signal to the business community and to employers that because we have legalized cannabis we should be following the same laws and rules that apply to alcohol and prescription drugs,” Hooton said.
She also pointed out that medical marijuana generally comes in the form of a CBD product, not a THC product.
The legislation was introduced on Friday and Hooton said she is still talking to the business and labor communities about it. Major opposition hasn’t cropped up yet, but it’s likely that employers who have drug-free workplace policies will push back on the measure. A similar bill was rejected in 2020.
“The National Federal of Independent Businesses has historically opposed any legislation that would (allow) the use of marijuana on the property of the employer or cause an employee to test positive for any prohibited drug or prohibit any authority of the employer to perform random drug tests,” said Tony Gagliardi, who leads the Colorado chapter of the group. “Marijuana remains illegal under federal law.”
The Colorado Chamber of Commerce said it hasn’t taken a formal position on House Bill 1152, but that it’s opposed similar legislation in the past.
Titone plans to pitch the measure as a way for employers to more easily find workers in Colorado’s tight labor market.
But Senate Minority Leader Chris Holbert, R-Douglas County, expressed early opposition to the concept. He has worked on a number of measures expanding medical marijuana access.
Holbert pointed out that Amendment 64 included the following provision: “Nothing in this (ballot measure) is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, delay, transportation, sale or growing of marijuana in the workplace to to affect the ability of employers to have policies restriction the use of marijuana by employees.”
“That really did clarify that employers can have a 100% drug-free policy in their workplace, and that, in my opinion, should not be infringed upon,” he said.
(Amendment 20, the 2000 ballot initiative allowing medical marijuana sales and use in Colorado, included a provision about how it does not “require any employer to accommodate the medical use of marijuana in any workplace.”)
Holbert said he would encourage employers in Colorado, however, to know the difference between drug tests that can tell if someone has activated THC – which can indicate if someone is actively high – in their system or just traces of the substance.
Colorado has a 5 ng/ml THC blood limit for drivers. People charged with a marijuana DUI in Colorado can argue that they were not impaired during the time of the alleged offense and that the THC in their bloodstream reflects prior or frequent consumption.
House Bill 1152 has yet to be scheduled for its first committee hearing.