Colorado Employers Rethinking Drug Testing

Eight states and Washington, D.C. allow for recreational cannabis, but none have solved the problem of workforce drug testing. Zero tolerance polices are being reconsidered in light of legalized pot.

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Even in marijuana-friendly Colorado, anyone can be denied employment for using the drug. In fact, there are few protections anywhere in the country for employees who fail a drug test, even in states where cannabis is legal. From Colorado Public Radio, Ben Markus reports.

BEN MARKUS, BYLINE: In 2013, The Denver Post named Ricardo Baca its editor for marijuana coverage. And he became the staff expert on pot, which meant sometimes counseling new hires on how to pass the pre-employment drug test at the Post.

RICARDO BACA: Yeah, it was super awkward. You know, I would have an editor come to me, inevitably. And they'd kind of quietly say, hey, I have this new hire. She's really great. But she lives in Seattle. And she consumes regularly. And she is not going to pass this drug test. And so can you help us out?

MARKUS: Baca would ask prospective employees when they last used. And he'd tell them that marijuana stays in the body for a month or longer. He'd gotten up to speed on these issues after he edited a big piece on this.

BACA: So I would just simply forward that piece to them after a conversation and just hope for the best.

MARKUS: Eventually, the newspaper dropped marijuana from drug screenings. And that's something more Colorado businesses are doing. Curtis Graves is with the Mountain States Employers Council, which regularly surveys businesses.

CURTIS GRAVES: But we're finding that employers, at such a tight labor market - that they can't always afford to have a zero-tolerance approach to somebody's off-duty marijuana use.

MARKUS: Tight labor market may be an understatement. Colorado's unemployment rate is the lowest in the nation at 2.3 percent. It's the lowest since the state began keeping track of the number in the '70s. The lack of available talent is a problem in construction, especially. J Bretz runs Excel Roofing just outside Denver.

J BRETZ: It is hard to find dependable people that will show up to work every day on time at this wage level.

MARKUS: With 1 in every 7 adults in Colorado using marijuana, even the most conservative employers are having to rethink their testing policies. So when Bretz wrote a new help-wanted ad on Craigslist, he made a change. He would not disqualify applicants if they tested positive for marijuana.

BRETZ: And if you disqualified every person because of the use of marijuana, we would end up not having very many candidates to choose from.

MARKUS: But Bretz says testing positive for drugs like cocaine and heroin is still an automatic disqualification. Employers across the country have near-total discretion whether to sanction off-duty pot use. Only three states have some protections for medical marijuana users, Arizona, Delaware and Minnesota. But a series of state court decisions have consistently sided with employers. John Hudak, a marijuana expert at the Brookings Institution, says whether medical or recreational, there's no getting around the fact that it's still against federal law.

JOHN HUDAK: It creates real challenges, then, for plaintiffs, for medical patients or other cannabis consumers to try to push the envelope and find rights or protections in the law.

MARKUS: Hudak says Colorado's initiative to legalize marijuana specifically said that workplace drug policies would not be affected. And that's common in other states' pot measures, too. He says it's a political calculation to help keep the business community from campaigning against it. As for Ricardo Baca, he left The Denver Post last year to start a cannabis-focused communications firm where he won't be drug testing.

BACA: Oh, gosh, no (laughter). No, there will be zero drug testing going on. And, you know, I imagine, I'll only be hiring people I know. And I know their work ethic. So feeling pretty good about it.

MARKUS: And with unemployment this low, it's the need for talent that's dictating the broader shift in workplace drug policies. For NPR News, I'm Ben Markus in Denver.

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