COLORADO SPRINGS, Colo. — State legislators have introduced a bill that, if passed, would prohibit employers from firing or refusing to hire an employee based on the use of medical or recreational marijuana.
House Bill 1152 seeks to allow people to use marijuana outside of work without negative professional consequences, preventing employers from firing, refusing to hire, demoting, refusing to promote or harassing an employee over marijuana use. The bill would also allow card-carrying medical marijuana users to use the drug during work hours on the employer’s premises.
Critics, notably businesses, said the legislation would create unsafe working conditions.
The bill’s sponsor, state Rep. Edie Hooton, D-Boulder, said her intention is to protect the rights of Coloradans who use medical marijuana for health conditions, such as chronic pain and seizures, calling it “grossly unfair” that these users lose out on employment opportunities that require drug tests.
"Those using medical marijuana, which is legal in Colorado, are discriminated against," Hooton said. "People are using medical marijuana to manage symptoms. They’re not using it to get stoned. It’s really unfair that people get fired or don’t get hired because they use medical marijuana."
Hooton said she included off-work recreational marijuana use in the bill because she wants to make sure "no gray area" exists, adding there is an unfair double standard put on recreational marijuana use compared to the use of other substances, such as alcohol, outside of work.
The Colorado Supreme Court ruled in 2015 companies are allowed to fire employees for using marijuana outside of work. Coats v. Dish Network revolved around the satellite TV provider firing a quadriplegic employee after he failed a random drug test. The employee, 35-year-old Brandon Coats, had a state-issued medical marijuana card and used the drug at night to help him sleep and quiet his muscle spasms.
Hooton said multiple state legislators have tried to pass versions of the bill since 2018 to protect employees, such as Coats. While marijuana is illegal federally, it has been legal for medical use in Colorado since 2009 and for recreational use since 2014.
Since the bill's introduction in the Colorado House last week, several business groups, including the Colorado Chamber of Commerce, Colorado Ski Country, the Colorado Restaurant Association and the Colorado Mining Association, have lined up in opposition to it.
"Mining and marijuana don’t mix," said Stan Dempsey Jr., president of the Colorado Mining Association. "Mining is an inherently risky activity in which companies recognize and take all steps to create the safest workplace possible. That includes assuring our employees have a drug-free workplace no matter the activity or position. We can have seen the results in the form of deaths and serious injury of marijuana use by miners. Why do supporters of the bill want to make the workplace less safe?"
Mollie Steinemann, government affairs manager of the Colorado Restaurant Association, raised similar concerns. Steinemann said restaurant employees under the influence of medical marijuana at work could cause safety issues because of their proximity to sharp objects and kitchen appliances.
The bill includes a list of exemptions, saying employers could restrict an employee’s use of marijuana if it relates to an occupational requirement, the employee's activities or responsibilities, or is necessary to avoid a conflict of interest. However, the bill specifies the exemptions must apply to a particular employee or a particular group of employees, not to all employees of a company
Hooton said it would be up to employers to decide whether an employee — such as a heavy machinery operator — needs to be restricted from using marijuana on a case-by-case basis. The decision would be subject to confirmation by the state’s Marijuana Enforcement Division. The bill does not include guidelines for what penalties employers would face if they don’t comply.
While safety concerns are valid, changes need to be made to the way Colorado businesses handle medical marijuana use, said Kelly Perez, cofounder and CEO of Cannabis Doing Good. Perez called the Coats v. Dish Network case a disturbing example of why the proposed bill is so important.
"It makes sense for patients to use their medicine as long as it doesn’t interfere with work responsibilities," Perez said. "(Medical prescriptions) are used by folks on the job regularly. … Safety concerns, machine operation, transportation, etc., should all be prioritized for safety, and sobriety would be expected and required. But off-work cannabis use — especially for patient use — should be tolerated and not grounds for being fired or not being hired."
Other marijuana professionals are less supportive of the proposed bill.
Truman Bradley, executive director of the Marijuana Industry Group, said his group has not taken a position on the bill and has concerns regarding Colorado’s standards for marijuana impairment.
In Colorado, a person is considered legally impaired by marijuana if a blood test finds at least 5 nanograms of THC per milliliter of blood. However, some studies have found that THC in the bloodstream does not correlate to impairment. A 2016 study by the American Automobile Association found no evidence "any objective threshold exists that established impairment, based on THC concentrations."
The Colorado Task Force on Drunk and Impaired Driving — which Bradley is a member of — has, for the last three years, recommended that the state reexamine its standard for marijuana impairment.
Bradley said he is worried the proposed bill would lead to employers testing employees for impairment on the job. An employee using medical marijuana during work hours or an employee who uses recreational marijuana outside of work and is no longer under the influence could be falsely labeled as impaired using Colorado’s current standards.
"We don’t have a standard for impairment, so how can employers make a good judgment?" Bradley said. "It’s widely accepted that the standard is flawed. It has both false negatives and false positives. It does not correlate in any way to impairment. Any conversation about workplace safety needs to start with a discussion and maybe a study about finding a true standard for impairment for cannabis."
Hooton said she expects to make many changes to the bill as she continues discussing it with parties, especially the business community. Nevertheless, she feels confident they will be able to work together and eventually create a version they can agree on.
"There’s a lot of discrimination and it’s not fair. The question is, how do you remedy that? How do you protect the rights of those who are entitled to use marijuana for legitimate reasons and employer rights?" Hooton said. "I hope we can come up with something to allow employers to continue to have control over their workplace while protecting the legal rights of medical marijuana users."
The bill is scheduled for its first vote by the House business committee on Feb. 24. If enacted, the bill would go into effect in August.
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