If your Colorado employer or prospective employer has asked you to take a drug test, you should know your legal rights. Federal law places few limits on employer drug testing: Although the federal government requires testing by employers in a few safety-sensitive industries (including transportation, aviation, and contractors with NASA and the Department of Defense), federal law doesn’t otherwise require – or prohibit drug tests. For the most part, this area is regulated by state and local laws.
Unlike most states, Colorado does not have a statutory scheme governing workplace drug testing. Although Colorado addresses drug testing in the context of unemployment (see below), the state has not legislated the circumstances in which a private employer may or may not require drug testing, the procedures that must be followed, and so on.
Unemployment and Wrongful Termination Claims
Colorado law states that an employer will not be charged for unemployment benefits if it terminates an employee for failing a drug test administered under a preexisting written policy. Based on this law, the Colorado Court of Appeals has held that an employee has no legal claim for wrongful termination after being fired for failing – or for refusing to take -- a drug test. The Court found that the unemployment statute created a standard of acceptable employer conduct, for which the employer could not be sued.
Legal Claims Arising From Drug Testing
Although Colorado law doesn’t protect employees from having to take a drug test (or from being fired based on the results), drug testing may give rise to other legal claims. Here are some examples:
- Disability discrimination. An applicant or employee who is taking medication for a disability is protected by the Americans with Disabilities Act (ADA). Some prescribed medications turn up on drug tests, and some drugs that would otherwise be illegal (such as opiates) are legitimately prescribed for certain conditions. If an applicant is turned down because of a positive drug test, and the applicant's medication was legally prescribed for a disability, the company could be liable (unless the drug is medical marijuana).
- Other discrimination claims. An employer who singles out certain groups of employees – for example, by race, age, or gender– for drug testing could face a discrimination claim.
- Invasion of privacy. Even an employer that has a legitimate reason to test might violate employee privacy in the way it conducts the test. For example, requiring employees to disrobe or provide a urine sample in front of others could be a privacy violation.
- Defamation. An employee might have a valid claim for defamation if the employer publicizes that the employee tested positive, if the employer has reason to know that the test might not be accurate. For example, if a retest showed that the first test was a false positive or the employee has appealed the first test, the employer may be liable for revealing the results of the positive test beyond those with a need to know.