ONE WAY STREET

There is a very real roadblock to using cannabis in Colorado, whether it is medical cannabis or retail (recreational) cannabis. Most people either have to or want to work in Colorado and have employers. Under Colorado law, employers can dictate whether or not you can use cannabis while employed by them. It is a “one-way street” in that regard. So you think, “That won’t affect me, I don’t use marijuana while at work or before I go to work, I only use it on weekends or after work.” Simple enough.

What happens though is when your urine is tested at work for “drugs” which includes cannabis (THC) they really are testing for inactive metabolites which reveals that sometime in the past you used cannabis. The test results may be labeled as “THC” but that may not be an accurate label. What many labs do is label the test result as “THC,” which is a psychoactive metabolite of cannabis, when in fact, the lab only tested for inactive metabolites, which are not psychoactive.

“What many labs do is label the test result as ‘THC,’ which is a psychoactive metabolite of cannabis, when in fact, the lab only tested for inactive metabolites, which are not psychoactive.”

So, what is prohibited? Is it active metabolites (THC) or inactive metabolites (COOH)? What does the employee handbook say? Before you even take a job you need to look at the employee handbook to see how it reads. A major problem with this is that employers who conduct urine teste in labs typically identify COOH as THC, simply because it makes it easier for them to label as they don’t have to explain the difference between inactive and active metabolites. What is convenient labeling and cheap testing for the lab, may be devastating to the employee. Even if the lab says it is testing for THC, you can doubt it. Testing for THC generally requires a blood sample and while it may not be outside the realm of possibility that the lab is using a more expensive method of testing your urine, the probability is they are not. The only way you will know the accuracy of a test is if you have the same urine sent to a private lab for testing.

While there are a growing number of businesses dealing with employee use of marijuana without firing the employees, the approach of “zero drug tolerance” is prevalent. The current case law in Colorado regarding the use of marijuana in the workplace is Colorado Supreme Court case 13SC394, Coats v Dish Network, LLC. Coats states that employers can fire an employee who violates their drug policy even if the employee is using the drug (medical marijuana) legally. The Coats case relied on the fact that cannabis was illegal under federal law and using it legally under Colorado law was not enough to overcome the illegal status. This may be revisited once cannabis is taken off the Federal Controlled Substances list as a Schedule I drug, which drugs have no medicinal use.