Colorado Drug Testing Laws – What Workers Need to Know

As a general rule, Colorado law allows your employer to test you for drugs – whether by random drug testing or a scheduled testing program. Employers may also test employees as part of the pre-employment screening process.

Furthermore, Colorado employers can fire you and disqualify you if you return positive test results, even for the use of marijuana (THC) – despite the legalization of recreational marijuana and medical marijuana in Colorado.

Here are three things to know about Colorado drug testing laws:

1. Federal marijuana law preempts state law

Marijuana – which is a schedule I controlled substance – is illegal under the federal government. Therefore, Colorado employers may rely on federal law rather than Colorado state law for prohibiting weed in the workplace and for terminating you if you test positive for marijuana.

It makes no difference that the recreational use of pot is legal in Colorado. It does not matter if you have a medical marijuana card and consume weed only for medical use.

Nor does it matter if you never come to work high and only use marijuana while off-duty. A positive drug test is all Colorado employers need to pass over or terminate you. You have no claim for wrongful termination for being fired or disqualified for failing a drug test, or refusing to take one.

The Colorado Supreme Court in the 2015 case Coats v. Dish Network confirmed employers’ right to fire you for using marijuana. In this case, the plaintiff used medical marijuana during non-working hours and never displayed impairment at work. Though even though Colorado has legalized medical marijuana, Dish Network could fire him for it because he was violating federal law.

In sum, your state right to consume marijuana is trumped by a business owner’s right to keep a drug-free workplace.

2. Employees who test positive can lose workers’ comp benefits

Employers may require workplace drug testing following a workplace accident. Then if your drug screening test comes back positive for cannabis use, Colorado law presumes that you injured yourself from intoxication. Unless you overcome this presumption with clear and convincing evidence, your workers’ compensation wage replacement benefits will be halved.

However, THC can remain in your system for several weeks following consumption. This means you can lose out on half your wage replacement benefits for a workplace accident you did not cause if your post-accident drug tests show the presence of a perfectly legal drug in Colorado that may have been ingested weeks earlier.

3. Employees may have grounds to sue for discrimination

Even though Colorado employers may fire you for failing a drug test, you may still have other grounds to sue depending on the circumstances:

1. Invasion of privacy, if for example you are required to urinate in front of others during the drug test.
2. Disability discrimination, if you are taking a prescribed medication – other than medical marijuana – for a legally recognized disability under the Americans with Disabilities Act (ADA).
3. Discrimination based on being part of a protected class, if you were being singled out for drug testing due to your gender, race, age, sexual expression, sexual orientation, etc.

Note that private employers tend to have less stringent workplace policies about zero-tolerance drug use – particularly marijuana use – during tight labor markets.

Additional reading

For further information on Colorado employment and drug laws, refer to our articles:

• Colorado background checks
• Does Colorado have a Ban the Box law?
• Who can see a sealed record in Colorado?
• Colorado drug laws
• Psilocybin Mushroom Laws in Colorado

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