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Amendment 64: Are drug-free businesses actually required to have drug tests?

Since Colorado voted to legalize recreational use of marijuana, there have been concerns about contradictions that now exist between state and federal laws -- including a contentious debate about workplace regulation. One Denver CEO told us that legal pot will make it hard for him to hire people, because he has to maintain a drug-free environment. But an A64 backer tells us that many employers are misguided -- and that businesses don't have to do drug testing.

Last week Jeffrey Popiel, president and CEO of a Denver-based company called Geotech, which manufactures and sells environmental equipment, told us that his biggest concern with the Regulate Marijuana Like Alcohol measure is that he'll have to turn away candidates for jobs, because even though state law says they can now smoke, it doesn't change policies at his company.

Jeffrey Popiel
Jeffrey Popiel
Sam Levin

Just like the potential conflict that could exist if the federal government chooses to enforce marijuana laws in Colorado, Popiel said that 64 doesn't change his requirements to certify a drug-free workplace. This is essential to his company, which employs about a hundred people, he explained, because he contracts with public municipalities, including the federal government.

After we published our interview with Popiel, we heard from Christian Sederberg, an attorney and advisor to the 64 campaign, who says that businesses like Geotech don't understand the law. Popiel, however, isn't buying it.

According to Sederberg, the Drug-Free Workplace Act of 1988makes it clear that having a "drug-free workplace" does not mean businesses have to actually do drug tests on potential employees or current employees.

From the United States Department of Labor's FAQ page on the law:

Is drug testing required or authorized under these regulations?

The Act and these rules neither require nor authorize drug testing. The legislative history of the Drug-Free Workplace Act indicates that Congress did not intend to impose any additional requirements beyond those set forth in the Act. Specifically, the legislative history precludes the imposition of drug testing of employees as part of the implementation of the Act. At the same time, these rules in no way preclude employers from conducting drug testing programs in response to government requirements (e.g., Department of Transportation or Nuclear Regulatory Commission rules) or on their own independent legal authority.

Basically, there is no legal stipulation that a business do drug testing, and a business owner could change policy in response to the passage of 64, says Sederberg, a founding partner with the law firm Vicente Sederberg LLC. His colleague, Brian Vicente, was one of the amendment's main proponents, and Sederberg also helped on the campaign and was on the drafting committee for 64.

"I don't think people are being intentionally misleading, I just think they don't know," says Sederberg. "We ran the campaign, so it's our job to continue the education process."

He says that questions about drug-testing requirements are one of several misguided concerns from the business community -- one which he discussed in the months leading up to Election Day and will continue to try and clarify going forward.

"The act itself is silent on drug testing," he says. "If you look at the...history, it's clear that this was not intended to require testing."

It's a debate that has come up in the context of medical marijuana. "It's really been an interesting discussion," he notes.

Companies ultimately make their own specific policies related to the certification of drug-free workplaces, Sederberg adds: "Employers in Colorado are free to reevaluate those polices."

Continue reading for response from Popiel, who argues that there's no way around drug testing.  

Popiel says that the nuances of how the original law was written do not change the realities of his operations going forward.

An A64 supporter on Election Day.
An A64 supporter on Election Day.
Photo by Brandon Marshall

"We are required to have a system in place to have a drug-free workplace," says Popiel. "If you say you have a drug-free workplace and you don't test at all, how can you say you have a drug-free workplace?"

He says that most companies -- and the entities that they do business with -- are going to see it that way, regardless of what the law directly mandates.

"It's just written so vague," he says. "How do you have a drug-free workplace without some sort of monitoring?"

Popiel says that he does drug tests on three separate occasions: They test when they are hiring people, when there is "reasonable suspicion" and when there's some sort of accident that causes an injury or has a specific dollar amount in terms of damage. In that latter category, he says his company hasn't had any accidents that require this kind of testing in a long time.

"I just don't see us changing," he says. "We do so much business with the federal government that it's not worth the risk of potentially losing the ability to do that business."

He notes that many companies do random drug testing, but he does not.

Business like his -- and Colorado residents in general -- need government officials to make it clear what's actually allowed, he says, given that, at the federal level, smoking marijuana recreationally remains illegal.

"The feds and the state -- they've got to clarify this," Popiel adds. "There's too many conflicting rules."

Sederberg, though, insists that regardless of a company's concerns, the law is clear. And there are alternatives to drug-testing, like having a very strong educational component on the policies of a company or the harms of drugs in the workplace. "An interesting question I would like to figure out is whether or not you could do drug testing and exclude marijuana?" he says.

Ultimately, Sederberg concludes, "In a perfect world, I'd also like to have an honest discussion on whether or not drug-testing for marijuana really does improve productivity or improve anything at all."

More from our Marijuana archive: "Marijuana: Boulder DA to take no action in activist's Amendment 64 complaint"

Follow Sam Levin on Twitter at @SamTLevin. E-mail the author at Sam.Levin@Westword.com.


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