Even where pot is legal, it is not always welcome at work

Seattle TimesJuly 14, 2014 

— Last Tuesday, Seattle City Attorney Pete Holmes made a spectacle of being among the first to buy pot from Cannabis City, Seattle’s inaugural retail marijuana shop. He bought two 2-gram bags of OG’s Pearl that day: one for posterity, he said, the other for “personal enjoyment when it’s appropriate.”

“Today marijuana sales became legal and I’m here to personally exercise that new freedom,” Holmes said. Then he went back to his office – with the pot.

While it might be acceptable by state law, taking marijuana to work is not a freedom city employees have, according to the city drug policy. Friday afternoon, Holmes apologized for bringing the pot to his office, and volunteered to donate $3,000 to downtown emergency services.

“When I brought the unopened marijuana to city offices – trying to keep up with a busy schedule – I nonetheless violated the city’s rules,” Holmes said in a statement.

Holmes’ apology doesn’t address his plans for “personal enjoyment,” though that, too, would seem to violate the city’s policy, which specifies: “Possession includes having detectable amounts in your body.” Spokeswoman Kimberly Mills on Friday said Holmes, an elected official, is not exempt from the policy, but he “never intended to use it any time soon.”

The case highlights the complicated relationship between state law and workplace policies pertaining to marijuana in Washington. With the first round of retail shops now open, Washingtonians can walk into a store, buy a bag of weed and go home and light up in full compliance of state law.

But that doesn’t mean they won’t be punished – or even fired – for it.

Employers still have discretion over setting guidelines for worker drug use. For certain professions, such as truck drivers who rely on federally issued commercial driver’s licenses, marijuana is generally prohibited across the board. But for most industries in Washington, policies are set by the employer, and having traces of marijuana in your system can still be grounds for firing.

“There is an element that’s industry-by-industry based on those regulations,” said Mark Berry, employment attorney for Davis Wright Tremaine. “Once you get outside of that I think it tends to be employer-by-employer. And each employer is making a judgment on how they want to enforce rules.”

Some companies appear to be taking a softer approach to enforcing drug policies related to marijuana use, said Michael Subit, Seattle-based employment-law attorney.

In 2011, Subit represented a worker who was fired for smoking medical marijuana. The case made it to the state Supreme Court, where the employer eventually won.

“You still can be fired for using it,” said Subit of legal recreational pot. “But you can be fired for doing many things that are legal.”

Subit said he hasn’t received calls from employees being fired for smoking marijuana in months, which is what leads him to believe more employers are lightening up on the issue. The stigma around marijuana has rapidly evolved, and he believes the recent opening of pot stores could hasten that changing perception.

“I think the fact that it’s now here is going to accelerate the cultural change even faster,” he said. “I think these things happen and the law sometimes follows cultural change, instead of anticipates (it).”

Many companies have come to treat marijuana with the same deference as alcohol: just don’t do it on the job, said Roshelle Pavlin, spokeswoman for the Washington State Human Resources Council.

“We’re not recommending that people do anything one way or the other,” she said. “But yeah, not at work, just like you don’t drink at work.”

Daniel Swedlow, attorney for Teamsters Local 117 – which represents more than 16,000 workers for 200 employers – said he’s seen continuing issues and arbitrations since Washington’s new marijuana laws went into effect in 2013.

Swedlow has seen a surge of employees calling him to inquire about their rights to consume pot now that it’s legal. In some extreme cases, employers have even given up trying to screen for marijuana.

“I think that some employers – very few, but some – have just stopped testing for pot,” he said. “They don’t want to know.”

More often, Swedlow said, he’s seen employers taking a stricter approach to policies against marijuana use.

He said many companies have attempted to change policy language during collective bargaining to specifically include marijuana, or even marijuana metabolites, which can stay in the bloodstream long after a person smokes. The union has fought against this kind of language, arguing employees should be able to engage in legal pot use on their own time.

“My experience so far has been that, as marijuana use is becoming more normalized, employers are backlashing against it,” he said.

Venus Mills, assistant director for Bothell-based Drug Free Business, said she expected to see a decrease in drug testing when new marijuana laws took effect. But so far it’s been the opposite.

“As a matter of fact, our client base has actually increased since the law went into effect,” said Mills. “We’re seeing more and more companies testing now that it’s in the forefront of their minds, ‘Are my employees smoking pot?’”

Some companies, such as Boeing, have not changed a thing. Boeing still prohibits marijuana use among its employees, citing federal law, and screens employees for substances upon hire, and afterward in certain cases.

“An employee may be required to undergo drug and alcohol testing in scenarios defined by our drug-free workforce policy that includes post-accident, reasonable suspicion, and random testing where required by federal DOT regulations,” said Boeing spokeswoman Catherine Rudolph in a statement.

The Seattle Times similarly drug-tests employees pre-employment and in cases of suspicion, said spokeswoman Jill Mackie.

“Employees who are working are expected to be free from the influence of alcohol or any other drug, legal or illegal, that could affect job performance or risk the health and safety of themselves or others,” she said.

For Washington teachers, policies can change by the district. But as a general rule, said Linda Mullen, spokeswoman for the Washington Education Association, teachers are expected to be of sound mind while on the job.

“Pot stores are just opening, but that doesn’t change the fact that educators and other people can’t go to work compromised,” she said. “You can’t go to work high just because it’s legal.”

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