Phil Castle, The Business Times

Colorado employers continue to test for drugs, but have relaxed some policies since the legalization of recreational marijuana sales in the state, according to the latest results of a survey.

The results also reflect the effects of low unemployment rates and a tight labor market, said Curtis Graves, a lawyer and manager of information services with the Employers Council.

For those employers that aren’t required under federal law to conduct drug testing and for employees working in positions without safety issues, Graves said they’re probably OK in relaxing marijuana testing. For safety-sensitive positions, though, stringent testing and zero-tolerance policies should remain in place, he said.

The Employers Council offers a variety of services to more than 4,000 employer members in Colorado as well as Arizona, Utah and Wyoming.

The council has conducted three surveys of Colorado members to track their drug testing policies since the passage of Amendment 64 legalized the commercial sale of recreational marijuana starting in 2014. A total of 636 members responded to the latest survey, including employers in a 14-county region of Western Colorado.

Some employers are required under federal law to conduct drug testing, including those with employees working in safety-sensitive positions in aviation, transportation and defense. Consequently, there were differences in the responses to the survey, Graves said.

Of those employers with drug testing policies, nearly all test for marijuana, cocaine, amphetamines and opiates. Of those employers that aren’t required to conduct drug testing, 82 percent reported using pre-employment testing, 29 percent random testing and 81 percent with a reasonable suspicion of drug use.

Over the past two years, 90 percent of employers that are unregulated for drug testing reported no changes to their testing policies. But 7 percent reported they’ve omitted marijuana from pre-employment tests, and 2 percent reported omitting marijuana from all tests.

Since passage of Amendment 64, 78 percent of employers unregulated for drug testing reported no changes to their drug policies. While 5 percent of employers reported making drug testing policies more stringent, 13 percent reported relaxing drug policies pertaining to marijuana.

Employers also reported changes in their policies for employees who test positive for marijuana use.

Overall, the proportion of employers terminating employees for a first positive test has slipped from 53 percent in 2014 to 48 percent in 2018.

Among employers that are unregulated for drug testing, 46 percent reported they fire an employee for a first test and 13 percent reported they allow employees to return to work under probationary conditions.

For subsequent positive tests, 46 percent of employers reported firing an employee and 7 percent reported they allow employees to return under probation.

Graves said laws and court rulings continue to support Colorado employers that terminate employees who test positive for marijuana use even though that use is legal in the state. Moreover, federal law still classifies marijuana as an illegal substance. So employees working in safety sensitive positions under the federal government must undergo drug testing.

One of the problems associated with testing for marijuana, Graves said, is traditional urinalysis can detect marijuana for weeks after use. Even an employee who uses marijuana during their leisure time, could test positive at work well after the fact. In contrast, alcohol levels can be determined almost instantly with a breathalyzer.

Given the growing acceptance of marijuana along with increasing labor demand in what’s generally been a tight labor market in Colorado, Graves said some employers have relaxed their drug testing policies for marijuana.

Graves said he advices employers that aren’t required under federal law to conduct drug testing to relax testing for marijuana if they choose for positions that aren’t safety sensitive.

For those positions that are safety-sensitive or require driving, however, Graves said he recommends tighter testing and zero-tolerance policies.