Drug Testing in Colorado: Problems and Advice for Private Employers
| Publication year | 1990 |
| Pages | 413 |
| Citation | Vol. 03 No. 1990 Pg. 413 |
1990, March, Pg. 413. Drug Testing in Colorado: Problems And Advice for Private Employers
Drug abuse in the workplace causes a variety of problems, including increased turnover, accidents, medical expenses and worker's compensation claims.(fn1) Concern over these problems has led many employers to consider drug testing programs for both job applicants and existing employees. As yet, there are no reported Colorado cases that directly address the legal problems raised by drug testing programs of private employers. In a sense, this means that Colorado law does not restrict a private employer's ability to implement a drug testing program. However, Colorado law does recognize most of the legal theories on which claims against private employers related to drug testing have been based in other jurisdictions. Therefore, private employers in Colorado face potential liability associated with drug testing programs.
This article identifies some of the legal theories on which drug testing claims have been based in other jurisdictions, analyzes the relevant Colorado authorities related to these theories and addresses some of the practical concerns that arise from these legal principles. Only the issues which confront private employers are discussed, not those of public employers.(fn2) A bibliography of resources concerning employment claims in general and drug testing in particular is presented at the end of the article.
Private employers considering drug testing programs should be aware of the potential liability which could arise from both state and federal statutes and common-law principles.(fn3)
Colorado law prohibits employers from discriminating against the handicapped.(fn4) The regulations promulgated under this law define handicapped people broadly to include all those whose major life activities are limited because of a "physical impairment." This is defined as any physiological disorder or condition.(fn5) This broad definition of a handicapped person raises the possibility that it may be unlawful to discriminate against someone because of their physiological dependence on drugs.
The issue of whether drug dependency constitutes a handicap has never been litigated in Colorado. However, several courts from other jurisdictions have held that drug dependency is a handicap under anti-discrimination laws similar to the Colorado regulations.(fn6) The trend suggests that, absent a legislative declaration to the contrary, courts may consider drug dependency to be a handicap.(fn7)
Colorado regulations require that employers make "reasonable accommodation" for a person's handicap.(fn8) The regulations also prohibit employers from using employment selection criteria that tend to screen out applicants with handicaps.(fn9) One regulation particularly relevant to the issue of drug testing provides that an employer may not conduct pre-employment medical examinations or pre-employment inquiries as to whether the applicant is handicapped nor may it inquire about the nature or severity of a physical handicap.(fn10)
Although an employer may not discriminate against a person because of a handicap, it may make employment decisions based on an individual's inability to perform the duties required for the job. Thus, the handicap regulations allow employers to use selection criteria shown to be job-related and to make pre-employment inquiries into an applicant's ability to perform the job.(fn11) It is sometimes difficult to distinguish between discrimination based on a handicap and discrimination based on an employee's ability to perform the work. In each case, the critical issue is whether the employee can perform the required work despite the handicap. For example
Daniel E. D. Friesen, Denver is an associate at Davis, Graham & Stubbs.
The implication of this analysis for employer drug testing is that an employer may only screen employees and applicants for drug use if it can establish a link between the drugs being screened and job performance. For example, it may be difficult or impossible to establish that detectable past drug use has any impact on present job performance. As a result, an employer could be found guilty of handicap discrimination when making employment decisions with respect to a drug-using employee if that employee's drug use does not adversely affect the employee's performance.
Colorado's unemployment compensation statute expressly provides that if an employee is separated from employment because of on-the-job or off-duty drug use, the employer may not be charged with unemployment benefits for that employee.(fn14) This general rule does not apply where an employee discharged for drug use (1) is a confirmed addict, (2) is undergoing treatment and (3) has not received unemployment benefits following a drug-related discharge in the last five years.(fn15) However, an employer can avoid payment under this exception if the employer can show that the worker has refused to participate in or failed to complete a drug rehabilitation program.(fn16)
This statutory framework is designed to encourage employers to send drug-dependent workers to treatment programs rather than discharge them. An employer that discharges a drug-dependent worker could be subject to paying that worker's unemployment compensation benefits unless the employer sends the worker to a treatment program. If the worker successfully completes the program, presumably the employer's reason for wanting to discharge the worker would no longer exist. The worker would keep the job and therefore would not seek unemployment compensation. If the worker does not successfully complete the program, then the employer is not liable for unemployment compensation benefits.
A drug testing program could give rise to employment discrimination claims in two ways. First, a drug testing program could have a disparate impact on a protected group if a higher percentage of the members of the protected group test positive.(fn17) This could establish a prima facie case of disparate impact and require the employer to produce evidence of the negative impact of drug use on job performance.(fn18) Second, an employee subject to a drug testing program might allege disparate treatment if the employee believes that drug testing is used as a mere pretext for prejudicial treatment.(fn19) For example, if non-whites are subjected to repeated testing while whites are not.
Under the National Labor Relations Act, an employer must bargain with a duly certified or recognized labor organization over wages, hours and other conditions of employment.(fn20) Drug testing appears to be a subject over which the employer must bargain.(fn21) Thus, an employer dealing with a union may unilaterally implement a drug testing program only after it bargains to an impasse and then only if the program is reasonable.(fn22)
The Rehabilitation Act of 1973(fn23) imposes requirements on private employers in two situations. First, it requires private employers with federal government contracts in excess of $2,500 to take affirmative action to employ and advance qualified handicapped individuals.(fn24) Private employers with federal government contracts in excess of $50,000 and with more than fifty employees must implement written affirmative action programs to help the handicapped.(fn25) Second, the Act prohibits private entities that receive federal financial assistance from discriminating against qualified handicapped people.(fn26) The Act defines handicapped people to include employees with drug dependencies who are nonetheless able to perform their jobs safely and adequately.(fn27) As with the Colorado anti-discrimination law, the critical issue is whether an employee is able to perform the job in a satisfactory manner, despite a dependency on drugs.
An employee aggrieved by an employer's failure to implement an affirmative action program for the handicapped
The Drug Free Workpace Act(fn31) applies to entities that contract with the federal government to provide goods or services worth more than $25,000 and to entities that receive grants from the federal government. Among other things, an employer subject to the Act must:
1) publish a statement to employees notifying them that controlled substances are prohibited in the workplace and specifying the actions that will be taken against employees who violate the prohibition;
2) establish a drug-free awareness program to educate employees about drug abuse;
3) notify the federal government of any criminal drug conviction arising from drug use in the workplace;
4) impose sanctions on or require rehabilitation of employees who abuse drugs in the workplace; and
5) make a good...
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