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Colorado Job Seekers: Beware The Unchanged Drug Test

Written by Kinzy Janssen

Colorado Job Seekers: Beware The Unchanged Drug Test

“Are you changing your drug testing policy now that recreational marijuana is legal?”

To those of us not living in Colorado or Washington, the question above seems like a legitimate way to address an unprecedented workplace issue. Just looking at all the conflicting facts side-by-side makes one’s head spin: the drug is still a federal no-no, but the feds don’t plan on prosecuting; trace levels of THC are present even when a user isn’t intoxicated; Colorado protects lawful outside-of-work activities from discrimination, etc.

It isn’t just a grey area; it’s a grey vortex.

Yet I quickly learned that there was already a consensus, based on the identical answers I got from staffing agencies in those two states:

“No, it’s the same and it will continue to be the same.”
“100 percent of our client base is alcohol and drug free.”
“We will not hire someone who tests positive.”
“We’re not changing any of our drug testing policies whatsoever.”
“Regardless of whether it’s legal in the state, you cannot come out ‘hot’ on a drug screen.”

Colorado Job Seekers: Beware The Unchanged Drug Test

The respondents’ reasoning patterns were similar, too. All of them explained that their clients want drug policies to remain intact, and that of course they cater to their client’s wishes, provided they’re legal.

And so far, the courts are on their side. In a state that offers protections for outside-of-work activities, marijuana remains an exception. Last year in a precedent-setting case, the Colorado Appeals Court upheld Dish Network’s decision to fire paraplegic Brandon Coats for his use of medical marijuana.

“If Mr. Coats can’t win this case, then nobody can,” Coats’ attorney Michael Evans said in an interview with Salon. “He’s about as bad as you can get in terms of physical disability… He was a great employee, and they admit that he was never impaired [at work] … He was following all of the laws.”

But there are other reasons staffing firms continue to conduct 5- or 7- or 10-panel drug screenings, and most of them are about saving money – and liability – down the road. Tracy Nelson, office manager at American Workforce Group in Longview, Wash., points out that this is especially true with clients in the manual labor industry, where safety is more of an imperative.

“How do you test for it while on the job?” she asks, rhetorically. “What’s a good tolerance while at work?” In other words, it’s easier to enforce a black-and-white policy than to start allowing low levels of THC.

Robin Fischer, president of Action Staffing Solutions which is based in Loveland, Colo., explains the cost factor. “If we open up the door and say, ‘yeah, we’re going to let pot smokers work for us, there are costs associated with that, from injuries to health insurance premiums to workers’ comp costs,” she said.

Carl Maes, president of TradeForce Staffing in Centennial, Colo., hasn’t heard any complaints from candidates who were confused or defiant about the unchanged policy. He said they specifically prep applicants for the drug screening by listing off which substances they’re going to detect.

“There have been no complaints,” said Maes. “The application they fill out has a consent for a drug test.”

Fischer hasn’t heard any protests, either. I asked her if Action Staffing Solutions had seen an uptick in the number of individuals testing positive for THC recently – especially in the randomized tests.

“We have not seen an increase. If anything, we’ve probably seen a decrease. I know that sounds crazy,” she laughed. “But people are starting to realize that if it shows up at any time – whether the test is random, post-accident, or pre-employment – you’re done. And that eliminates them from workers’ comp coverage and unemployment….”

There are plenty of incentives for employers and staffing agencies to maintain a “no-tolerance” drug policy. And there are clearly incentives for employees and job seekers to stay away from the drug despite its changing reputation.

“When people are looking for gainful employment to make a meaningful living — to support their family the way they deserve to be supported – it’s an important decision [not to smoke pot]. The choice is yours – you make it. If you come back hot, I’m sorry – we make them sign the statement for our own protection, whether it’s legal or not smoke pot.”

{ 5 comments… read them below or add one }
  1. Gilliejr

    This issue aggravates me on a daily basis and not necessarily from the job seekers but the general public here in Colorado. I wonder where all of these people who believe that “pot cures everything” and “would rather drive with a pot smoker than a drunk” work at because we have a zero tolerance policy, all of our clients have a zero tolerance policy and almost every company I know in Colorado has a zero tolerance policy!

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  2. JennS

    The testing will have to evolve to better determine what level of THC is impairing vs non-impairing. That is how I see this issue being resolved. With lots of wasted time and money in the meantime.

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  3. Kinzy Janssen Post author

    Future lawsuits and the appeals may all hinge on one word: “lawful.” Right now, Colorado is interpreting this to mean “federally lawful.” So when someone smokes weed at home outside of work, it’s still federally unlawful, and therefore not protected — like other forms of expression and activities — from wrongful termination. Being vague just opens the door for more lawsuits.

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  4. jayfizzle

    I think it is contradictory to say that marijuana is still illegal in the work place. It’s funny because some prescription ‘pain-killer’ drugs (very similar make up as HEROIN) are widely abused, even when they are prescribed by a doctor. But… as long as it comes from a physician, it’s OK and you won’t get fired. “There are plenty of incentives for employers and staffing agencies to maintain a “no-tolerance” drug policy”. Really?! That sounds federally lawful to me.

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  5. Lisa

    Jayfizzle: The two key words are “prescription” and “abused.” If someone has a legal prescription for the drugs you refer to and are abusing those drugs, they will also be in violation of most every work place substance abuse policy.

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