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With pot legal, risk expert tries to clear the air

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DENVER – It’s a point on which a lot of Colorado employers remain hazy: whether to make their drug-testing policies more stringent in the wake of Amendment 64.

The question is expected to confront even more employers across the country in the next few years as the movement to legalize recreational uses of marijuana catches fire.

So far, just Colorado and Washington state have gone that far. But more than a dozen additional states — from Utah to Maryland — have legislation pending to legalize the recreational use of the drug.

Just what employers can or should do in response was the topic of a session Tuesday at the 2015 Risk & Insurance Management Society conference.

Scott Collins, director of risk management at MediaNews Group, owner of the Denver Post, suggested employers tread carefully.

“You have to be careful with your policy,” Collins said. “Usually, the thing that hangs you is your own policy. Because that becomes your law and you have to follow it to a ‘t.’ If you’re putting in a strict policy, you have to have strict controls.”

A survey of Colorado employers soon after the amendment won passage in 2012 found that 21 percent had, indeed, made their drug-testing policies more stringent. But 71 percent made no changes to their policies whatsoever.

Whether more should isn’t a question that can be easily answered, Collins said.

“You have to evaluate your particular business. There is no one-size-fits-all solution,” he said.

Businesses in a ski resort, for example, might want to leave their policies unchanged, if only to ensure they can continue to attract and retain a workforce that is younger and, at least stereotypically, more likely to use marijuana recreationally.

Some employers that will want to look most closely at the question are those with safety-sensitive positions, federal grants or contracts above $100,000 and those doing business with the Department of Defense, among others.

In the end, he said, employers might consider simply leaving their policies broad and instead providing training and guidelines to simply help employees understand the law.

After all, nothing in the law, according to Collins and others presenting on the topic, requires employers to permit or accommodate “the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace.”

Moreover, as Pinnacol Assurance staff counsel Grant Butterfield reminded the audience, an individual’s constitutional right (in Colorado) to use marijuana “does not trump or supersede an employer’s constitutional right to maintain a drug-free work environment. 

Instead of worrying about marijuana, Collins said, employers should be more concerned about the biggest cost-drivers: alcohol and prescription-drug abuse and smoking.

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