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Marijuana is legal here. (Is it fair for employers to drug test?)

Ar 170229864
Illustration by Roldo
Ar 170229864
Illustration by Roldo

Do you feel that employees, whether those employees are medical marijuana patients or retail marijuana consumers, should have certain protections in the workplace without facing job loss and unemployment due to off-the-clock marijuana use?

Many companies across Colorado have drug testing programs in place for employees and job applicants wherein those who test positive for drug use, including the legal use of marijuana, can be fired or denied from a job. In the states that have medical marijuana laws and the ones that have full legalization, there are not any corresponding laws at the state level that would establish workplace protections for those who get flagged in drug screens ... yet.

Mason Tvert is director of communications at the Marijuana Policy Project, an education and lobbying organization committed to ending marijuana prohibition based primarily in Washington D.C. In a 2015 interview with The Atlantic, he said, “We expect the laws to catch up with the culture, and increasingly, employers are not going to want to fire employees for using marijuana off the job and then go through the process of hiring and training ... They will treat marijuana similarly to how they treat alcohol.”

I reached out to Tvert’s colleague, Chris Lindsey, senior legislative counsel, for an update on the issue at hand: Drug testing to achieve or maintain employment and the laws that govern it.

“I would say Mason is right, it’s a question of timing. And it does seem like we’re starting to see that change,” Lindsey said. “I mean, there was a report recently that showed pre-screens in Colorado are going down, so there aren’t as many employers that are bothering with it.”

I asked Lindsey if drug testing falls under labor laws. “Drug testing is usually driven by federal policy, and it often shows up if you have a government contract that you rely on for any part of your business. (In that case) then probably the federal government has a requirement in the contract that says you must drug test your employees. These are typically in the form of zero-tolerance policies. Somebody screens them when they come in the door and then there are random screenings.”

What about employers in La Plata County and elsewhere who are rumored to only drug-test the applicants that will be operating company-owned vehicles as part of their employment?

“That’s a good policy, exactly the kind of policy we think should be in place,” Lindsey said.

While only testing the drivers of company-owned vehicles is a giant leap forward, it could still prove unfair to those driver/operators who have never been intoxicated on the clock or behind the wheel. I can understand how an employer would want to make sure its employees aren’t impaired on the job – that’s fine, test for that.

The problem here is that the vast majority of employers are not usually testing for active THC, because those tests are comparatively more expensive, but they are available. Treat the employee who smokes pot on the clock no differently than you would treat the employee who drinks alcohol on the clock, but test for active use before taking away their chance to earn an honest living. I’m inclined to agree wholeheartedly with Lindsey and the Marijuana Policy Project on the issue at hand, “Don’t give us these drug tests that are more about a lifestyle choice.”

And for those applicants and employees who still choose to partake even though they are subject to pre-employment or random employee drug screens, Gandolf’s on Main Avenue offers several reasonably-priced products that are guaranteed to help you get or keep your job in the event of a drug screen. They also offer test kits for use at home, so you know if you’re in the clear before you show up for the real deal.

Jennifer Knight is a freelance writer, thanks in no small part to her day job at Durango Solar Works. (jenn@bathtubjenn.com)Roldo is an ink-slinging angel, an investor of true talent.