Colorado - Considerations for Marijuana in the Workplace

Medical
Marijuana Law:

Recreational
Marijuana Law:

No Broad Laws
Legalizing Marijuana*:

*Marijuana is either totally illegal, or there may be laws decriminalizing possession, or use of marijuana, or, the state may have a CBD law legalizing THC at a level constituting marijuana-derived CBD.

Employer Concerns – Significant to Review

  • Employers are not required to accommodate medical or recreational use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace and employers have the right to restrict the use of marijuana by employees.
  • There is no specific drug testing law for employers in Colorado, however the city of Boulder has ordinances strongly impacting drug testing.

Testing

Hiring/Termination

  • Employers may terminate an employee for a positive marijuana drug test even if use happened off the job and the employee has a valid medical marijuana card.

Discipline

  • Employers may terminate (and thereby discipline) an employee for a positive marijuana drug test even if use happened off the job and the employee has a valid medical marijuana card.

Use/Possession

  • Smoking is permitted.
  • It is illegal to ingest cannabis in a motor vehicle or drive under the influence.
  • In 2019, Colorado passed law to create business licenses for hospitality establishments where consumers can bring or ingest cannabis products. Without such a legal license, consumption is reserved for non-public areas.

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)
  • For “Driving Under the Influence of Drugs” there is reasonable inference law with legal limit >0 ng/ml for THC. For “Impaired Driving” per marijuana-specific laws, there is reasonable inference for THC 5 ng/ml.
  • Colorado has unemployment and workers’ compensation voluntary laws with many details about drug testing. Although not required, these statutes provide greater latitude to deny workers’ compensation and unemployment claims.
    • Unemployment denial – Benefits will not apply if the discharge is due to, (Colorado Revised Stat. 8- 73-108(5)(e)(VIII)) “…off-the-job use of non medically prescribed intoxicating beverages or controlled substances…” “…to a degree resulting in interference with job performance;” or , (Colorado Revised Stat. 8-73-108(5)(e)(IX)) “…on-the-job use of or distribution of not medically prescribed intoxicating beverages or controlled substances,” or a positive drug test per Colorado’s code.
    • Per legal decision (Beinor v. Industrial Claim Appeals Office 2011 No. 10CA1685) law does not protect a registered medical marijuana user who tests positive from being denied unemployment benefits if it is in violation of an employers’ express zero-tolerance policy.
    • Workers’ compensation denial – Benefits will not apply if the injured employee has a drug test result that is positive, at such a level, (Colorado Revised Stat. 8-42-112.5(2))“… it is presumed that the employee was intoxicated and that the injury was due to the intoxication.”

Sources

(e.g., Bill Number, Authority)
Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

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