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

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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.

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.

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Sam Levin
Contact: Sam Levin