Marijuana Legalization Legislation Passed in Colorado and Washington Could Affect Workplace Drug Testing

Legislation legalizing recreational marijuana use that passed in two states on Election Day November 6, 2012 – Colorado Amendment 64 and Washington Initiative 502 – would legalize and regulate production, possession, and distribution of marijuana for persons age 21 and older and could affect drug testing by employers in the workplace, according to the eNewsletter State Drug Testing Laws Monthly. To stay current on state laws concerning drug testing, visit

In Colorado, voters approved Amendment 64 that supports the legalization of marijuana on a recreational basis and will amend the state constitution to legalize and regulate the production, possession, and distribution of marijuana for persons age 21 and older. Article XVIII of the constitution of the state of Colorado would be amended by the addition of a new section: ‘Personal Use and Regulation of Marijuana.’ Regarding the workplace, Section 16(6)(a) states:

  • “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing or marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

In Washington, voters supported Initiative 502 that will legalize and regulate the production, possession, and distribution of marijuana for persons age 21 and older. The Washington referendum called for a 25% tax rate imposed when the grower sells marijuana to the processor, when the processor sells marijuana to the retailer, and when the retailer sells marijuana to the customer. Estimates for how much tax revenue the Washington measure would create run as high as $500 million.

  • Concerning the workplace, State Drug Testing Laws Monthly reports Initiative 502 does not address if the decriminalization of recreational marijuana use requires workplace accommodation but does say the Washington State Institute for Public Policy must create reports on the effects of marijuana that must specifically include the effects on the workplace.

As reported earlier on the ESR News blog ‘Studies Show Drugs in Workplace Cost Employers Billions and Small Businesses Employ More Drug Users but Drug Test Less,’ statistics from recent studies on drug abuse by American workers show workplace drug and alcohol use may potentially cost U.S. businesses an estimated $100 billion each year. In addition, studies found smaller businesses that were more vulnerable to workplace drug use tested less than larger businesses even though the cost of one error caused by an impaired employee could devastate a smaller company.

According to ‘The Safe Hiring Manual’ by Attorney Lester Rosen, Founder and CEO of background check firm Employment Screening Resources (ESR), drug tests are usually separated into two categories: DOT (Department of Transportation) screens and Non-DOT (also called “forensic” or “non-regulated”) screens. In DOT screens, a limited panel of drugs can be tested for only in urine or breath with federally-mandated “cutoff levels” at specific times within the employee’s time with the company. In non-DOT screens, employers are free to select the specimen to be tested – blood, breath, saliva, urine, or hair – the panel of substances to be tested against, the cutoff level, and the times or circumstances when the test may be taken.

Typically a “5 panel” drug test includes:

  • Marijuana (THC).
  • Cocaine.
  • Phencyclidine (PCP).
  • Opiates such as codeine, heroin, and morphine.
  • Amphetamines, including methamphetamine.

Employment Screening Resources (ESR) – – is accredited by The National Association of Professional Background Screeners (NAPBS®). ESR also provides a third party administrator service for Pre-Employment Drug Screening (PDS) for employers nationwide that helps smaller businesses conduct drug tests quickly, easily, and inexpensively. For more information about PDS services, visit


About Employment Screening Resources (ESR):

Founded by safe hiring expert Attorney Les Rosen in 1997, Employment Screening Resources (ESR) – ‘The Background Check AuthoritySM’– provides accurate and actionable information that empowers employers to make informed hiring decisions for the benefit of their organizations, employees, and the public. CEO Rosen literally wrote the book on background checks with “The Safe Hiring Manual” and ESR is accredited by The National Association of Professional Background Screeners (NAPBS), a distinction held by a small percent of screening firms. Employers choosing ESR know they have selected an agency meeting the highest industry standards. To learn more, visit, call 888.999.4474, or email

About ESR News:

The Employment Screening Resources (ESR) News blog – ESR News – provides employment screening information for employers, recruiters, and jobseekers on a variety of topics including credit reports, criminal records, data privacy, discrimination, E-Verify, jobs reports, legal updates, negligent hiring, workplace violence, and use of search engines and social network sites for background checks. For more information about ESR News or to send comments or questions, please email ESR News Editor Thomas Ahearn at To subscribe to the complimentary ESRcheck Report monthly newsletter, please visit