NOTE:  The content of this website is provided for informational purposes only and does not constitute legal advice.

Marijuana in the Workplace

Question:  Now that marijuana use has been legalized in Colorado, how can I reduce the risks to my business?

Answer:  There are many unsettled legal issues relating to marijuana use in the workplace, and there is no way to “bullet-proof” your business against liability.  As an employer, your best protection against potential claims is to implement policies and procedures in your practice before any issues arise.  Here are a few suggestions:

  • Draft and adopt a strict zero-tolerance drug policy prohibiting the use of marijuana for any reason.
  • Notify all current employees of the new policy and obtain their signatures acknowledging that they understand it and agree to abide by it.
  • If an employee mentions that he/she currently uses marijuana for medical purposes, consult with your employment law attorney to help you work through the issue.
  • If you adopt a policy of random drug tests, check with your attorney. Some cities, such as Boulder, have restrictions.
  • It is probably safer to drug test only after you suspect someone is under the influence during work hours, and you have documented the specific facts and observations leading to your suspicion.
  • If someone drug tests positive, deal with it as a violation of your strict zero tolerance drug policy – not as a medical or disability issue.
  • When you interview an applicant, provide a copy of your zero tolerance drug policy. Do not ask if the applicant is a medical marijuana cardholder – this could introduce some complicated legal scenarios.  Just tell applicants that if they are hired and subsequently test positive for any illegal drug, they will be terminated.  Those applicants with marijuana (or other drug use) issues may elect not to pursue a job with you.

 Employment Eligibility Verification

Question:  We are hiring employees for our new Colorado business.  What are my obligations under the employment verification laws?

Answer:  A comprehensive explanation is beyond the scope of this answer.  Check with your employment law counsel to make sure your policies and procedures are in compliance.  Here are some guidelines:

  •  Make sure you are using the updated version of the Federal I-9 form.  All new hires must compete and sign Section 1 of the form on their first day of work.
  • The new hire, not the employer, is entitled to choose which of the acceptable verification documents to provide.
  • Keep I-9 forms and documentation in a separate file, NOT in the employee’s employment file.   I-9 forms and supporting documentation must be kept for three years after the employee’s date of hire, or one year after the employee’s termination, whichever comes later.
  • Complying with Federal verification requirements is not enough.  If you are a Colorado employer, you must also comply with the Colorado Employment Verification Law.
  • Colorado employers must also use the new “affirmation of legal work status” form for all employees hired in Colorado on or after October 1, 2014.
  • Under Colorado law, employers must retain copies of the employment authorization documents that accompany the completed Federal Form I-9.
  • Colorado employers must retain the employer’s affirmation form and supporting documents for as long as the employee remains an employee.

New EEOC Guidance on Preventing Pregnancy Discrimination

Question: the EEOC has issued new “Enforcement Guidance: describing its position on complying with the Pregnancy Discrimination Act.  What should employers do to make sure they are in compliance with these new guidelines?

Answer:  The EEOC has issued a set of suggested “Best Practices” that employers may adopt to reduce the chance of pregnancy-related PDA and ADA violations:

 In General:

  •  Develop, disseminate, and enforce a strong policy addressing the types of conduct that could constitute unlawful discrimination, and include a clear process for employees to make a complaint.
  •  Train managers and employees regularly about their rights and responsibilities.
  •  Respond to pregnancy discrimination complaints, investigate promptly, and protect against retaliation.

Hiring, Promotion, and Other Employment Decisions:

  •  During job interviews and performance reviews, focus on the individual’s qualifications for the job.  Do not ask questions about pregnancy status, children, or plans to start a family.
  •  Make hiring, promotion, and other employment decisions without regard to stereotypes or assumptions about women affected by pregnancy childbirth, or related medical conditions.
  •  Develop specific, job-related qualification standards for each position that reflect the duties, functions, and competencies of the positions.
  •  Disclose information about fetal hazards to applicants and employees, and accommodate resulting requests for reassignment if feasible.
  •  Review workplace policies that limit employee flexibility, such as fixed hours of work and mandatory overtime, to ensure that they are necessary for business operations.

Terms & Conditions of Employment:

  •  Provide training to all workers, including those affected by pregnancy or related medical conditions;
  •  Ensure that employees are given equal opportunity to participate in advancement opportunities;
  •  Review any light duty policies to ensure they provide pregnant employees access to light duty assignments.

Reasonable Accommodation:

  • Have a process in place for expeditiously considering reasonable accommodation requests made by employees with pregnancy-   related disabilities, and for granting accommodations where appropriate.
  • Your written policy should make it clear that reasonable accommodations may be available to individuals with temporary impairments, including impairments related to pregnancy.
  •  Train managers to recognize requests for reasonable accommodation and to respond promptly and appropriately.

The full list of “Best Practices” is set out in the new Enforcement Guidance Document that can be found at