The Aspen Skiing Co. is returning to a mandatory drug-test policy for employees who are injured on the job, after four years of allowing supervisors to decide whether tests were necessary.
The move could prove problematic for those who hold a state license allowing them to use marijuana for medical purposes.
Since 2007, post-accident drug testing at SkiCo has been based on whether the employee’s supervisor had reasonable cause for believing the worker was impaired due to drugs or alcohol while on the job. Those drug tests, which could result in an employee being fired even if trace amounts of marijuana show up, will once again be compulsory regardless of whether use is suspected.
SkiCo made the switch after receiving feedback from employees and community members, who complained that the policy was too subjective, said Jim Laing, SkiCo’s vice president of human resources.
It also is an industry standard, which SkiCo hadn’t been adhering to, said Laing, adding that there have been no recent incidents that have triggered the policy change.
In addition to mandating drug tests after accidents, SkiCo is increasing the number of random drug tests for pre-employment applicants as part of an effort to enhance safety across the board, Laing said.
In the past three years, worker’s compensation costs have tripled at SkiCo, he said. The number of accidents have not increased, but the cost of treatment per accident has gone up. SkiCo attributes that to a combination of factors, and post-accident drug testing is just one of many safety-related initiatives the company is taking to lower those numbers. The SkiCo recently announced that all employees must wear helmets on the mountain.
“There’s different perceptions about why we’re [enacting these policies],” said Laing. “Some people think there’s a single influencing factor, but we believe it’s been a variety of reasons costs are going up. Ultimately it comes down to what we can do that results in people thinking more about safety on a daily basis.”
SkiCo uses the Colorado Department of Transportation’s protocol, which employs the use of a medical review officer (MRO) to analyze the laboratory results to determine whether or not an employee was impaired at the time of the accident.
If an employee tests positive for drugs they will be fired, according to company policy. That includes testing positive for marijuana, which can remain in the system for weeks after use, regardless of whether the individual has a state-issued medical marijuana license.
“That is the state law,” said Laing on medical marijuana licenses. “And we are governed by federal law.”
Although medical marijuana has been legal in Colorado since Amendment 20 was passed in 2000, the state’s influx of new pot dispensaries did not occur until the U.S. Department of Justice issued a memorandum in 2009 stating that its officials would not prosecute growers who were operating within state law.
Amendment 20 states that employers do not need to accommodate medical marijuana users in the workplace, but gives no additional guidance. Further efforts by the state to clarify marijuana laws do not address employer-related drug tests.
“The state has not addressed it, is the short answer,” said local attorney Lauren Maytin. “In some states it’s been challenged but nothing like that has come up in Colorado.”
Other states have granted business owners the right to create their own policies on medical marijuana users, some of which have resulted in firing employees with any trace of pot in their system, Maytin said.
The Colorado Workman’s Compensation Act doesn’t consider marijuana a medically prescribed substance and as a result, non-medical benefits otherwise payable to an injured worker are reduced by 50 percent if he or she tests positive for controlled substances not medically prescribed. The act defines controlled substances according to the Colorado Revised Statutes, which specifically includes marijuana among drugs like cocaine.
SkiCo passes no judgment on licensed users of marijuana, but due to the legal ambiguity of the drug the company can’t make an exception, Laing said.
“It’s a complicated issue,” said Laing. “But it comes down to safety. We cannot have people impaired on the job.”
How long and what amount of marijuana would need to be in someone’s system to cause impairment — and to test positive — is something that is left to the MRO to determine, Laing added.
Meanwhile, throughout the community, drug testing is relatively sparse among employers.
The Pitkin County government requires random drug tests each quarter from six of about 25 CDL drivers, who operate machinery like snowplows. There are roughly 240 employees who work for Pitkin County.
“Basically the federal law trumps the state law for the CDL drivers,” said Stephen Pingree, senior human resources generalist at the county. “Because they’re held to the federal law rather than state laws.”
Other county employees are not required by the federal government to be tested, so they aren’t, said Pingree.
Meanwhile, the city’s drug testing policy is similar to SkiCo’s previous requirements -— it performs no random drug testing and only requires post-accident drug tests based on the city’s reasonable suspicion testing guidelines.
Other local businesses that require one-time pre-employment drug tests include The Ritz Carlton and Alpine Bank.
“Unless it’s a concession we don’t actually ask for those things,” said Kristi Shelton, Alpine Bank’s vice president of human resources, regarding employees with medical marijuana licenses. Because it is a one-time test, employees with licenses could theoretically get around it, she admitted.
While The Ritz and Alpine Bank are corporate-owned establishments whose policies toward testing are company-wide and determined by executives outside of the Roaring Fork Valley, one local company made the decision to mandate a drug-free workplace based on the owner’s experience.
Aspen Painting, Inc., owned and operated by Roger Moyer since 1968, decided to require random drug tests throughout employment after a stoned employee caused a scaffolding accident in the 1980s.
“That sort of thing is unacceptable,” said Moyer, adding that he decided to make it an insurance issue rather than a social or moral one.
After the accident, Moyer mandated drug tests for all employees. In the first week, everyone quit. A week later, two returned to work, because their wives made them, he said. The issue that most, if not all, had against testing was due to their admitted marijuana use, Moyer said.
One employee who tried to stay failed multiple drug tests for cocaine and eventually quit. His addiction led to his suicide years later, said Moyer.
Since, Moyer has developed a three-strike system to help employees give up their chosen drug as opposed to firing them outright.
If an employee tests positive at Aspen Painting, Inc. he or she is allowed to return to work under the condition that the worker is evaluated and takes weekly drug tests. If the employee fails a second drug test, that person has to go into full treatment for the drug together with his or her significant other. If the employees fail a third test, they are fired without the possibility of being rehired.
The emphasis is to help them, not punish them, Moyer said.
Moyer recalled attending a Rotary Club meeting in the ’90s for local business owners when he was trying to frame a drug testing policy. Out of about 100 businesses, only two required drug tests from employees, he said. One was Aspen Painting, Inc.
When asked about his opinion on medical marijuana, Moyer said he hasn’t had to deal with the issue yet, but that jobs with no safety liabilities are probably more suited for a medical marijuana user than others.
“That’s so new,” Moyer said. “In an industry where you have safety issues it would not be a good place for them.”
In a warehouse job, it would be perfectly fine, but there would have to be designated workplaces for those with marijuana licenses, he added.
“Most are afraid,” said Moyer on employers drug testing. “They’re afraid they’ll lose their people. I found that out at the Rotary meeting. Most of the folks said, ‘Oh I’d lose half my staff.’ It’s an interesting dilemma and nobody wants to step up and do anything about it.”