The COVID-19 pandemic appears to have impacted the judgement of some legislators in Colorado in ways we hadn’t anticipated. Republicans and Democrats both appear to exchange their traditional thinking about employment-at-will depending on the issue at hand. Using the excuse that it’s the job of legislators to incentivize Coloradoans to return to work, sponsors of three bills reject the concept that employers can control the safety of the workplace and provide for a drug-free workplace. Republicans have taken up the notion that individual employees have a right to their job even if they object to reasonable workplace safety measures.
Democrat Edie Hooten (D-Boulder) has renewed previous efforts to force employers in Colorado to accommodate marijuana use by employees both on the job and off-duty. That’s right, House Bill 1152 as introduced would allow any employee possessing a medical marijuana card to use marijuana on the job with very few vaguely worded exemptions in the bill. Employees could not be fired for testing positive for marijuana use off duty, thus eliminating an employer’s ability to provide a drug free workplace.
When Coloradoans approved the sale of retail marijuana in 2012, they affirmed the right of an employer to not accommodate marijuana usage in the workplace or off duty. In fact, CMA reaffirmed its position that Amendment 64 did not in any way require employers to accommodate marijuana use in the filing of an amicus curiae brief before the Colorado Supreme Court in the Coates vs. Dish Network case that lawmakers wish to overturn.
Republicans also have decided they know better how to manage an employer’s workplace than employers. House Bill 1100 by Representative Kim Ransom (R- Douglas County) would prohibit an employer from discharging an employee for not being vaccinated against COVID-19 and allow an employee new right to sue an employer if fired.
Despite accommodations provided in current law, Colorado Republicans attempted to create their own in-state law with the intention of hamstringing businesses who wish to impose a vaccine mandate. Representative Kevin Van Winkle (R-Douglas County) was not successful in his advocacy of House Bill 1200 last week in the House Business Affairs and Labor Committee.
Perhaps it’s surprising that legislators this year have elected to challenge a fundamental employment principle in Colorado—employment-at-will. Clearly, Republicans in Colorado are copying the efforts of Florida Governor Ron DeSantis and legislators in that state to impose new requirements upon employers and local governments with the backdrop of President Biden’s vaccine mandate which was struck down earlier this year by the Supreme Court.
While legislators, like the public, wish to debate vaccinations and marijuana, employers simply want to provide the safest workplace possible; CMA members have always insisted mining operations be drug-free.
Fortunately, most legislators from both parties, despite their views of employment law in general, are thoughtful and responsive to employers’ interest in maintaining the safest workplace possible, including those that are drug-free.
The fundamental issue at hand is legislator’s perception of their role in governing business and restricting their conduct of the workplace. Representative Van Winkle, usually a strong supporter of business in Colorado, stated that “individual liberty” trumps everything. Representative Shannon Bird, who toured the Revenue-Virginias mine last summer near Ouray, objected to applying additional mandates upon employers.
We anticipate all three bills will be defeated; the sponsor of the marijuana legislation has publicly stated she plans to amend the bill to create a task force to resolve the issue. CMA remains steadfastly opposed to the bill in any form that prohibits an employer from maintaining a drug-free workplace.
We feel it’s important to keep CMA members aware not just about the status of legislation being debated in the General Assembly, but also the trends we see in legislators thinking about business including mining in Colorado.