Businesses’ concerns about workplace safety and a memo from the state Department of Public Health and Environment persuaded members of a House committee to unanimously reject a bill that would have let workers use marijuana during off-hours without fear of being fired.
House Bill 1089 didn’t mention marijuana by name. Instead, it would have changed a state law to allow for activities that are illegal under federal law but are legal in Colorado, such as using cannabis products.
In 2015, the Colorado Supreme Court sided with DISH Network in ruling against a quadriplegic employee who used medical marijuana at night to control seizures.
Brandon Coats, who attended Wednesday’s hearing, was by all accounts a model employee, but DISH Network had a zero-tolerance policy regarding drugs, and Coats was fired after failing a random drug test.
Business groups that lined up to testify to the Business Affairs and Labor Committee on Wednesday included construction and electrical contractors, airlines, mining companies, insurance companies, cities and counties, chambers of commerce, electric and other utility companies and unions.
The bill’s only support came from those witnesses who use cannabis and organizations that back cannabis legalization and/or normalization.
Committee members cited a Feb. 6 memo from the Colorado Department of Public Health and Environment to the Colorado Competitive Council, which worked to defeat the bill, as the most compelling reason to reject it.
That memo, on the current state of drug testing, explained that there isn’t a reliable test that can tell the difference between someone who is impaired from THC, the active ingredient in marijuana, versus someone who tests positive but isn’t impaired.
“It would place employers wanting to protect the safety of their customers and employees in the position of being sued for using imperfect testing methods,” Competitive Council Director Lauren Masias said.
In response to a question from Rep. Marc Snyder, D-Colorado Springs, Masias said that if there was a test that could determine with 100% certainty levels of impairment, they would be open to a conversation on the issue.
Loren Furman of the Colorado Chamber of Commerce noted that in 2013 a state task force on the implementation of Amendment 64 said voter intent was to “maintain the status quo for employers and employees, and that employers may maintain, create new, or modify existing [drug] policies” as a result of Amendment 64’s passage. Employers will be at risk for more lawsuits, Furman said, if the law was changed.
Several witnesses brought up the issue of safe job sites, including contractors and mining companies. Certain job activities should be exempt, especially those with federal safety regulations, according to Michael Gifford of the Associated General Contractors of Colorado and Stan Dempsey of the Colorado Mining Association.
If the bill became law, it might also drive up costs for workers compensation premiums, said Edie Sonn of Pinnacol Assurance. She said Pinnacol anticipates increases in workplace injuries and workers compensation claims, and that could apply to industries well beyond those with federal safety regulations, such as health care and child care, she said. “Anyone can get hurt on the job,” Sonn told the committee.
Proponents talked about how cannabis has improved the quality of their lives, and made them better employees.
Jason Warf of the Southern Colorado Cannabis Council, representing patients and doctors affiliated with the council, said the state statute on lawful activity has been around for 30 years. This is a states’ rights and privacy issue, neither of which cannabis users have the luxury of, he said.
Warf also said as many as 100,000 people aren’t in the workforce for fear for testing positive for marijuana. He noted that a dozen states now prohibit employers from discriminating against medical marijuana cardholders, or from firing employees for testing positive for off-duty marijuana use.
Just as many, however, do as Colorado does, where the law is silent, but courts have sided with employers or have allowed employers to fire employees for off-duty pot use.
Alejandro Perez, who operates the podcast CannaQuestions, said current law forces people to seek out other drugs that don’t show up on tests, and cannabis is safer than many of the alternatives. That was echoed by Bridget Seritt, representing Canna-Patient Resource Connection of Colorado Springs, who said that the majority of her 1,000 patients are veterans.
Bill sponsor Rep. Jovan Melton, D-Aurora, told the committee before the vote that current law says that it is a discriminatory and unfair employment practice to terminate an employee when that employee is engaged in lawful activities off-premise and off-hours.
“We’re saying that while alcohol is legal and marijuana is legal, you can do alcohol on Saturday and go to work on Monday.” You can’t do marijuana that way, he said, for fear of losing your job. “That’s discrimination on its face,” he said.