Even though Colorado adults can walk into a store and legally purchase marijuana, just like liquor, exercising that freedom off-the-clock could cost them their jobs.
Amendment 64 legalized the recreational use of marijuana for those 21 and over in Colorado, but it retained employers’ rights to “have policies restricting the use of marijuana by employees.”
That means that, if an employer follows a zero-tolerance drug policy, off-duty legal pot use, if detected through testing, could result in immediate termination.
Even employers who don’t practice “zero-tolerance” – but do conduct pre-employment drug screening, random testing and testing following accidents or injuries – could legally reprimand and fire an employee for consuming pot during their free time. Because marijuana is illegal under federal law, Colorado employers are not bound by the state’s Lawful Off-Duty Activities statute, which prevents employers from disciplining workers for off-the-clock legal activities, such as alcohol consumption.
The Colorado Court of Appeals established this precedent last year, in a case involving a quadriplegic man who used medicinal marijuana (which was legalized in 2000) off-the-clock, tested positive in a random test and was fired.
For employers and workers, this issue is further complicated by the fact that, unlike alcohol, marijuana can be detected in the blood, saliva and urine for up to three months, but tests can’t accurately determine when it was consumed – and whether it was on- or off-the-clock.
And some argue that, unlike a Breathalyzer, testing levels do not accurately correlate to a person’s impairment. According to a National Highway Traffic Safety Administration report, “it is difficult to establish a relationship between a person’s THC blood or plasma concentration and performance impairing effects.” In regards to urine testing, the report states that “the detection of total THC metabolites in urine … only indicates prior THC exposure,” and could even reflect the use of “over-the-counter hemp oil products.”
The report also stated that the impaired performance caused by marijuana use can have “residual effects” for up to 24 hours, but even this isn’t helpful without a time stamp of when the use occurred – leaving employers to question how a positive test result relates to the level of impairment at work.
Until testing technology, federal law and state law are on the same page, employers are addressing this dichotomy – that an employee can be fired for smoking pot on a Saturday night but not for getting drunk – in various ways. Some companies – particularly in industries like construction and transportation, where the chance of impairment heightens existing safety concerns – are increasing their screenings and hardening zero-tolerance policies, while others are coming down on the other side of the fence, deciding not to test for marijuana at all, or instituting “two strike” policies for those who test positive.