Colorado Drug Testing Laws 2024

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Colorado Drug Testing Laws 2024

As of 2024, Colorado has no statutory drug testing laws addressing or governing workplace drug testing. As a result, employers do not have rules about what can or cannot be tested when conducting workplace drug testing. Generally, employers are responsible for creating workplace policies on which they can run and conduct drug tests on their employees. The only notable exception is the City of Boulder, where several workplace drug testing restrictions exist. Since Colorado currently has no drug testing legislation, employers in the state must figure out what to do about employees' use of cannabis. Although cannabis is legal in Colorado, employers are not required to accommodate employees’ use or possession of marijuana in the workplace, including those using cannabis based on their physicians' recommendations.

If an employee fails a drug test in Colorado, their employer can penalize them, even if the test detects only minimal amounts of marijuana metabolites, psychoactive or not. Despite the constitutional protections for Colorado residents to use cannabis, the state's Constitution explicitly protects employers' right to create policies to restrict the use of cannabis by their employees. Employers are permitted to fire employees who lawfully consume marijuana off-duty if they fail drug tests for cannabis. The right to do so was litigated in the state in 2015 in the Coats v. Dish Network LLC case. In this case, the Colorado Supreme Court ruled in favor of Dish Network LLC. It upheld the company's right to terminate an employee's appointment for using marijuana at home off-duty despite the employee's status as a medical marijuana patient.

A bill (HB 22-1152) to prohibit employers from taking adverse action against employees based on cannabis use was introduced in the Colorado General Assembly in the 2022 Regular Session. However, it did not pass the introduction stage. Many people may assume that employers are no longer allowed to conduct drug testing in the workplace because the state has legalized medical and recreational cannabis use. This is not true. In Colorado, employers still have the right to institute any workplace marijuana policy they deem fit, including zero-tolerance marijuana policies.

What Kinds of Drug Tests Can Employers Conduct in Colorado?

Colorado has no restrictions on employee drug testing because the state has no specific drug testing laws. Employers are free to choose the kind of drug tests to conduct on their employees, although they must follow best practices. Besides drug tests for marijuana, Colorado employers may also drug test employees for opiates, amphetamines, phencyclidine, cocaine, ethanol, methadone, and benzodiazepines. Common marijuana tests conducted by employers on employees in the state include the following:

• Reasonable Suspicion/ Reasonable Cause Test - This is administered to employees who are suspected to be under the influence of cannabis while at work. Such employees often exhibit signs of being unfit for work
• Return-to-duty/Follow-up Test - This type of test is conducted on employees who just completed a rehabilitation program after returning to work
• Post-accident Test - Employees who are involved in workplace accidents undergo this kind of drug testing to determine whether marijuana consumption was a contributing factor to the accident

Other commonly conducted drug tests for marijuana in the workplace in Colorado are random and pre-employment drug tests. Generally, these tests aim to detect the presence of THC metabolites in employee's body systems. While the state has no workplace drug testing laws, an employer may choose to collect an employee's saliva, blood, hair, urine, or sweat as a sample or specimen to conduct a drug test for cannabis.

Can Employers Do Random Drug Testing in Colorado?

Yes. Although no specific law mandates or requires Colorado employers to conduct random drug testing on employees, employers are not prohibited from doing so. Where an employer chooses to implement random drug testing, it must provide copies of its workplace drug testing policy to the employees. Such a policy must contain information about the procedures. However, the policy does not have to specify a notification duration for conducting the tests. The element of surprise is what makes random drug testing very effective.

What Happens if You Fail a Drug Test in Colorado for a Job?

In Colorado, any employee who fails a drug test for marijuana or other drugs, scheduled or random, can be fired by their employer. An employee who is fired for a positive test result in a workplace drug testing in the state cannot claim wrongful termination, even if the person used cannabis only off-duty. In addition, an employer will not be required to pay unemployment benefits if it terminates an employee's appointment for testing positive on a drug test conducted in line with the employer's pre-existing workplace policies.

Depending on the circumstances of a workplace drug test, in Colorado, a fired employee may be able to sue their employer if the drug test invaded their privacy. Also, they may contest their employment termination if the test was conducted based on discrimination, for instance, due to gender, race, or sexual orientation.

Can I Be Fired for Refusing a Drug Test in Colorado?

A Colorado employer may fire an employee for refusing to submit to a drug test, provided the test complies with the company's policy. This is especially possible if the employee was given a prior written notice when hired or at some point during the employment. There are several reasons an employee can have to refuse workplace drug testing in Colorado, including the following:

• If the employee is diagnosed with a medical condition covered by the Americans with Disabilities Act (ADA)
• If the employee can prove beyond doubt that the intended drug test is premised on employment discrimination
• If the employee has not given their consent to the test and their employer secretly collects their sample, for instance, a hair specimen, without their knowledge

In Colorado, an employee who gets fired for refusing a workplace drug test for tenable reasons can contest their employer's decision. The best way to do so is to hire the services of an attorney for legal representation in court.

Can You Get Fired for Failing a Drug Test with a Medical Card in Colorado?

Yes, an employee can be fired for failing a drug test for cannabis in Colorado, even if they are enrolled in the state's Medical Marijuana Registry and have a medical card. No state law exempts medical cannabis patients from workplace drug testing. Similarly, a job candidate who tests positive for marijuana can be disqualified, even if the cannabis was used for medical reasons.

Can Employers Conduct Drug Tests on Applicants in Colorado?

Yes. In Colorado, it is not out of place for employers to test prospective employees for drugs during the interview stage. However, a job applicant has a right to know about the employer's drug testing policy and should be notified ahead of time about the employer's intention to test them for drugs. If a job applicant fails an employer-mandated drug test, they may be disqualified, regardless of whether the prospective employee is a medical cannabis patient or not. Similarly, a job candidate who was warned about the possibility of undergoing a drug test but refused to submit to it can be denied employment. In Colorado, employers can choose to test prospective employees for any kind of drugs, including cannabis, in accordance with their workplace drug testing policies.

Is Pre-Employment Drug Testing Allowed in Colorado?

No Colorado pre-employment drug testing laws exist, but employers are not banned from conducting pre-employment drug tests on new hires in the state. However, it is not mandatory, except for employees recruited to work in safety-sensitive roles. For instance, the state's Department of Public Safety (CDPS) requires pre-employment drug testing for all new employees hired to work in safety-related positions before settling in.

Does Colorado Allow Public Agencies to Submit Employees to Workplace Drug Tests?

Yes, public agencies in Colorado can subject certain local or state employees to workplace drug tests. Although there are no state drug testing laws in the state as of 2024, employers, including public agencies and private sector employers, can create their own workplace drug policies. Under the Drug and Alcohol Policy for State Employees, covered employees must submit to drug tests, including random and pre-employment drug tests, whenever required.

Covered state or local government employees who test positive for drugs, including cannabis and metabolites of controlled substances, violate the Drug and Alcohol Policy. The consequences of such violations are grave, including personnel action under the State Personnel Board Rules and Director's Administrative Procedures or referral to the Colorado State Employee Assistance Program (C-SEAP). Any job candidate who violates the policy can have their employment offer withdrawn.

Can Employers Choose to Create Drug-Free Workplace Policies?

Yes. Employers in Colorado can establish and enforce drug-free workplace policies, including prohibiting employees from using cannabis. They are not required to accommodate marijuana use in the workplace, especially as it remains prohibited under federal law. Even though marijuana is legal for medical and recreational purposes in Colorado, an employee's constitutional right to use cannabis does not override an employer's statutory right to maintain a drug-free workplace. While the state has no drug-free workplace law, it defers to the Federal Drug-Free Workplace Act and complies with its provisions. Generally, an employer must have a drug testing requirement in place to be able to create a drug-free workplace policy in Colorado.

Employees Exempted From Colorado Workplace Drug Testing Laws

Colorado has no workplace drug testing laws currently but allows employers to test employees for drugs as they see fit in line with their workplace drug testing policies. The state places no restrictions on employee drug testing.

What are the Requirements for Drug Testing Labs in Colorado?

Colorado employers may not necessarily drug test their employees in certified labs, except for post-accident drug tests for workers' compensation purposes. However, it is ideal for employers to contact the services of laboratories certified by the Colorado Department of Public Health and Environment (CDPHE). No lab can provide analysis of drug tests in the state without certification by the CDPHE. However, as defined by regulations, a lab must meet certain performance standards to qualify for the CDPHE certification. In addition, they must have the ISO/IEC 17025 accreditation, which is the United States standard.