After getting busted himself, Seattle City Attorney Pete Holmes says it’s time for Americans to have an “overdue conversation” about marijuana in the workplace.
On July 8, 2014, the first day that retail stores began selling marijuana in Washington state, Holmes went to Cannabis City in Seattle and plopped down $80 for two 2-gram bags of weed. Then he went back to his office and put the drugs on his desk, not realizing that even though his purchase was legal under state law he had just violated the city’s drug-free workplace policy.
“It was a completely inadvertent violation, but it was a violation nonetheless,” said Holmes, who apologized and fined himself $3,000, donating the money to Seattle’s downtown emergency services.
If prosecutors can’t keep up with the maze of competing marijuana laws these days, one might forgive regular folks who feel a little hazy about them.
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And workplace attorneys say the issue promises to become even more puzzling for employers and employees alike on Nov. 8, when voters will decide whether to allow or expand legal access to marijuana in nine more states.
Pot backers hope that all or most of the ballot measures pass, making 2016 the point of no return in the long drive to end federal marijuana prohibition. On Nov. 9, recreational marijuana could be legal in states that represent nearly a quarter of the U.S. population.
As a result, larger companies with multistate operations will have the most homework, scrambling to figure out how to deal with employees who work in jurisdictions with differing marijuana laws.
“The labyrinth of laws are going to become even more complicated and complex,” said Tad Devlin, a professional liability partner at Kaufman Dolowich and Voluck in San Francisco who counsels employers and insurers on marijuana issues in the workplace. “What it’s going to do is create more uncertainly and potential for dispute claims and even litigation.”
Tom Angell, chairman of the pro-legalization group Marijuana Majority, said the debate highlighted “the ongoing stigma and discrimination” that marijuana users still faced, despite the success of pot backers in voting booths across the nation.
“If a worker’s cannabis use doesn’t negatively affect how they do their jobs, it really shouldn’t be an employer’s business, just like how your boss can’t tell you not to have a glass of wine with dinner,” Angell said. “If someone isn’t doing their job, fire them, but I can’t fathom why any company would want to get rid of an otherwise good employee just because they happen to smoke a joint every now and then.”
While both Congress and President Barack Obama have opposed the full-scale legalization of marijuana, popular approval of the drug has soared. A Gallup Poll earlier this month found that a record high 60 percent of Americans now support an end to pot prohibition.
As the drug grows in popularity, pot use in the workplace has jumped dramatically, driving failure rates on employee drug tests to a 10-year high in 2015. That’s according to a study of 9.5 million urine samples and 200,000 hair samples, released last month by Quest Diagnostics, one of the nation’s largest drug-testing firms.
While workplace safety remains a top priority, many employers now worry that it will be harder to recruit younger workers if they put too much emphasis on the drug tests.
Richard Meneghello, who works with Washington state and Oregon businesses on marijuana issues as managing partner of Fisher Phillips in Portland, said the most common questions from employers used to focus on how to enforce zero-tolerance policies for pot, but that has changed.
“In the last two years, it’s slowly shifted,” he said. “Now the more frequent phone call is, ‘Gee, if we really prohibit anyone from having marijuana in their system in the workplace we might not have many employees.’ And this especially comes in the hospitality industry and retail industry and other industries where apparently people have the feeling that a lot of their hourly workers are using recreational marijuana.”
So far, courts have given employers the upper hand in dealing with pot users, ruling that they can rely on federal law to dismiss workers who fail drug tests, even if the employees have recommendations from their doctors to use marijuana and they’re using it while not at work.
On Nov. 8, voters in five states – California, Arizona, Massachusetts, Maine and Nevada – will decide whether to fully legalize and regulate marijuana. They would join four states that already allow using the drug for recreational purposes: Washington, Colorado, Alaska and Oregon.
Voters in Florida, North Dakota and Arkansas will decide whether to approve marijuana for medical use, while Montana residents will vote on whether to loosen restrictions on its current medical marijuana laws. Twenty-five states have already approved medical marijuana.
For now, Meneghello said he advised companies to keep zero-tolerance policies, citing “the nightmare scenario of the employee taking the company car for a delivery and mowing somebody down and testing positive for marijuana.”
But he said that attitudes had loosened: “What I say to them is to tell your employees you’re not going to walk around and be a narc and try to be a detective and try to determine what they were doing in their off-hours – you’re only going to care about it if they demonstrate signs that they’re impaired at work.”
Meneghello said a growing number of employees who preferred marijuana over drinking felt singled out by drug testing because THC, the active ingredient in pot, remained in the bloodstream much longer than alcohol. An employee who gets “completely blotto” with alcohol on Friday night and Saturday and shows up to work on Monday with a splitting hangover will pass a drug test, while an employee who last smoked a joint three weeks ago might fail, he said.
“It is unfair,” Meneghello said. “I do get this a lot. I hear employees complain.”
Devlin said the most important things for human resource directors to do to protect their companies from lawsuits were to “try to know everything” about changing state laws and make sure their policies were up-to-date and fully understood by managers and workers alike.
“It needs to be as transparent as internet usage and hostile workplace rules, so that it becomes part of the menu of required employee training and then the handbooks conform, so there’s no missing spot in the file,” he said.
Holmes, the Seattle City attorney, said he’d decided to buy the marijuana to show support for Washington state’s new marijuana sales law, standing in line in his suit and tie on a hot summer day, a member of the bar knowingly violating the federal law that bans all marijuana sales and possession. He said he’d put the two small bags of marijuana on his desk and rushed off to a meeting.
“There was no intent to even open them, let alone consume them, on the work premises or during the workday,” Holmes said. “It was just one of those things.”
But he said his mistake prompted a review of all of the city’s drug-free workplace rules. Among other things, he said, he realized that managers can’t keep liquor in their offices, even for after-hours use, and that employees can’t buy bottles of wine during their lunch hour and take them to the office, even if they’re planning to not open them until they get home for dinner.
Two years later, Holmes is still trying to figure out what to do with his marijuana.
“I don’t know, maybe I’ll put it in a safe deposit box or something – and violate federal banking rules,” he said.