December 9, 2023
With so few federal laws governing the use of drug tests in the workplace, it is left largely up to state legislatures to regulate employer drug testing matters. While other states have laws restricting how drug tests can be used in places of employment, Colorado has relatively few.
In our state, while there are certain laws that protect the privacy of tested employees, there are virtually no laws that protect workers from being required to take a drug test or being fired because of the results.
And while you may have guessed that testing positive for heroin, cocaine, or crystal meth could result in termination from your job, you may be surprised to learn that you can also be fired for testing positive for marijuana. Although the recreational use and sale of marijuana is legal under Colorado law, that doesn’t mean it is necessarily permissible in your workplace. In fact, according to a survey by Mountain States Employers Council, hardly any businesses in Colorado have relaxed their anti-drug policies following the 2012 legalization, and 21 percent have actually imposed sterner rules.
In Colorado, an employer who has a drug testing policy in place can fire you if you test positive for marijuana or any other drug—even if you restrict your usage to your own personal time. There have even been several controversial cases where employees were fired after testing positive for weed despite having a medical marijuana card.
Other Potential Penalties for Failing a Drug Test
Being terminated from a job isn’t the only penalty you may face for failing a drug test from an employer. In Colorado, private companies may lawfully penalize employees and prospective employees in a variety of different ways, including:
Denying employment benefits. After being fired for failing or refusing to take a drug test, you may be denied unemployment benefits. Generally, an employer does not have to pay unemployment benefits for terminating an employee for failing a drug test that was administered under a preexisting written company policy.
Requiring drug counseling. Employees who are not fired after testing positive for a controlled substance may still face additional disciplinary action. Your employer may ask you to choose a substance-abuse treatment program in place of termination of your employment. You could be barred from performing certain safety-sensitive duties until you complete a drug counseling program and pass a second drug test.
Refusing employment. Even in Colorado, it’s not uncommon to spot job listings that discourage weed-using applicants, regardless of whether they use marijuana for medicinal or recreational purposes. To secure certain jobs in Colorado, many applicants must go through a drug screening before they are even considered for the position.
It’s worth noting that although a company may be able to refuse to hire you, fire you, or ask you to attend counseling after testing positive for marijuana or an illicit drug, they have no legal obligation to report the test results to the police. In fact, in most circumstances, privacy laws would make it illegal to reveal this information to law enforcement.
Defending Your Rights in a Drug Test
If an employer or prospective employer has asked you to take a drug test, it’s important to know your legal rights if you want to avoid tough consequences to your career and lifestyle. Talk to a seasoned Colorado drug crimes defense attorney who can help you understand your options and advics you on how to proceed.
And if you believe you have been subjected to an unfair drug test, you may be able to protect your rights through a legal claim. Drug testing can give rise to a variety of legal claims, including:
Disability discrimination. If you are fired for taking a medication for a disability that is protected by the Americans with Disabilities Act, you may be able to demonstrate that the company discriminated against your disability unlawfully.
Other types of discrimination. It is illegal for an employer to single out a certain race, age, or gender for drug testing. If you believe you have been discriminated against unfairly, you may be able to file a claim against your employer.
Invasion of privacy. Employers must conduct tests in a way that does not violate employee privacy laws. Otherwise, they could be subject to a privacy violation claim.
A knowledgeable attorney with a successful track record can help you assess your unique situation to determine whether you may file a claim against your employer to protect yourself from unfair or prejudiced testing. And if you find yourself facing legal action because of the results of a drug test, a criminal defense attorney can defend your right to privacy in court.
About the Author:
Denver-based criminal defense and DUI attorney Jacob E. Martinez is a knowledgeable and experienced litigator with a record of success providing innovative solutions to clients facing criminal charges of any severity. Mr. Martinez has been designated a Top 100 Trial Lawyer by the National Trial Lawyers and has been awarded both the Avvo Client’s Choice Award and Avvo Top Attorney designation, evidencing his reputation for his exemplary criminal and DUI defense work and high moral standards.