Business concerns over workplace safety and a memo from the state Department of Public Health & Environment swayed members of a House committee into unanimously shooting down a bill that would prohibit employers from terminating employees who use cannabis off-hours.
House Bill 1089 didn't mention marijuana by name. Instead, it would have changed a state law to allow for activities deemed illegal under federal law but that are legal under Colorado law.
The issue went live in 2015 with a Colorado Supreme Court ruling in which the Court sided with DISH Network and 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 failed a random drug test and was fired.
Business groups who lined up to testify to the House 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. Two unions, representing electrical and pipe trade workers, also were opposed, according to the Secretary of State's lobbyist database.
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 the bill.
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. That includes urine or blood tests, even a newer "oral" test that uses cheek cells.
Drug testing just hasn't advanced to the point that it can detect impairment, several witnesses said.
"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 were 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 were to pass, 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.
Those who spoke in favor talked of their use of cannabis and how it has improved the quality of their lives, and made them better employees.
Jason Warf of the Southern Colorado Cannabis Council, representing patients and doctors tied to the council, said the state statute on lawful activity has been around for 30 years. This is a state's 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 cannabis 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 prior to 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 a 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.
Co-sponsor Rep. Jonathan Singer, D-Longmont, added that the sky hasn't fallen, nor have worker's compensation or accidents gone through the roof in other states that have made the changes proposed in HB 1089.
But committee members, including several Democrats, said the bill is too broad and that the lack of reliable testing was convincing. Rep. Shannon Bird, D-Westminster, said that while she understands people's need to use cannabis for medical reasons, it's a business owner's right and responsibility to maintain a safe and productive workplace, and that she found the CDPHE's opinion persuasive.