Colorado — Hiring & Onboarding

Colorado's Chance to Compete Act (C.R.S. § 8-2-130) prohibits employers from inquiring into or requiring disclosure of an applicant's criminal history on an initial written or electronic application form. The ban also extends to job advertisements: employers may not state in an ad that persons with a criminal history may not apply. The law applies to employers with 11 or more employees (as of September 1, 2019) and to all employers regardless of size (as of September 1, 2021). Employers may, however, run criminal background checks at any time during the hiring process; the restriction applies only to questions on the initial application itself.

Source: C.R.S. § 8-2-130 and CDLE INFO #9C

Colorado's lawful off-duty activities statute, C.R.S. § 24-34-402.5, makes it a discriminatory or unfair employment practice for an employer to terminate an employee for engaging in any lawful activity off the employer's premises during nonworking hours. The statute is sometimes called the "smokers' rights law" or "lifestyle discrimination statute" because it was originally enacted to protect employees from termination based on lawful personal choices such as tobacco use outside of work. The protection is broad: it covers any activity that qualifies as "lawful," extending beyond smoking to potentially include political activities, hobbies, and other off-duty conduct.

Statutory Exceptions

The statute includes two express exceptions that permit employer restrictions on off-duty activities. An employer may terminate an employee for off-duty lawful activity if the restriction:

• (a) Relates to a bona fide occupational requirement or is reasonably and rationally related to the employment activities and responsibilities of a particular employee or a particular group of employees (rather than to all employees of the employer); or

• (b) Is necessary to avoid a conflict of interest with any responsibilities to the employer or the appearance of such a conflict of interest.

These exceptions allow employers to impose targeted restrictions when the off-duty activity genuinely affects job duties or creates a conflict. For example, an employer may prohibit a safety-sensitive employee from activities that directly impair their ability to perform critical functions, or may restrict outside employment that competes with the employer's business.

"Lawful" Defined — The Federal-State Conflict Over Marijuana

The central interpretive question under § 24-34-402.5 is what "lawful" means. The Colorado Supreme Court addressed this directly in Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015). Brandon Coats, a quadriplegic, held a state-issued medical marijuana license and used marijuana at home during nonworking hours to treat muscle spasms. Dish Network terminated him after he tested positive for THC in a random drug test, and Coats sued under § 24-34-402.5, arguing that his state-licensed medical marijuana use was a "lawful activity."

The Colorado Supreme Court unanimously held that "lawful" means lawful under both state and federal law. Because marijuana remains a Schedule I controlled substance under the federal Controlled Substances Act, 21 U.S.C. § 812, with no recognized medical-use exception, the Court concluded that medical marijuana use—though permitted by Colorado's constitution—is not a "lawful activity" for purposes of § 24-34-402.5. The Court declined to read a state-law-only limitation into the term "lawful," noting that "nothing in the language of the statute limits the term 'lawful' to state law." Id. at 853. The holding means that employers in Colorado may lawfully terminate or refuse to hire applicants who use marijuana, whether recreationally or medically, even if the use is entirely off-duty and compliant with Colorado state law.

Practical Implications for Hiring and Onboarding

Employers may enforce zero-tolerance drug policies that prohibit marijuana use and may condition employment on passing a drug test. Applicants and employees have no statutory protection under § 24-34-402.5 for off-duty marijuana consumption. Employers should document drug-testing policies clearly in employee handbooks and ensure consistent enforcement. While the statute broadly protects lawful off-duty activities—such as lawful firearm ownership, lawful political participation, or lawful hobbies—it does not extend to conduct that violates federal law, regardless of state-level legalization.

Legislative efforts to extend employment protections to off-duty marijuana users have been introduced but not enacted. HB 22-1152, which would have prohibited employers from taking adverse action based on off-duty cannabis use, did not advance beyond introduction in the 2022 session. Until Colorado law changes, employers retain the right to maintain drug-free workplace policies that include marijuana, and applicants should be aware that off-duty marijuana use remains grounds for rejection or termination.

Source: C.R.S. § 24-34-402.5 Source: Coats v. Dish Network, LLC, 350 P.3d 849 (Colo. 2015)