Where there's pot smoke, you're still fired

While marijuana use is legal in Washington, employers are not mandated to change drug policies

By Cami Joner, Columbian retail & real estate reporter

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Marijuana is legal under Washington state law, so users have no need to worry about being picked up by the police.

But it's pretty much business as usual in the workplace and will likely stay that way until rules and perceptions change about off-the-job marijuana use.

While some employers say they already are taking a light stance on employees who use marijuana in their off hours, many still have zero-tolerance policies enforced by routine screenings that carry no leniency or compromise. Employees who test positive for THC — the chemical in marijuana — are fired immediately, no questions asked, even though voter-passed Initiative 502 made pot use (and possession of 1 ounce or less) legal for adults 21 years and older.

There's no legal recourse for a worker who tests positive if their company has a zero-marijuana policy, said Linda Frischmeyer, an employment attorney at the Vancouver office of Landerholm Law P.S.

"Nothing about the new law says your employer is required to change its policy," she said.

The challenge facing employers who don't object to recreational marijuana use, but who want to make sure their workers aren't under the influence at work, is that the drug's active ingredient remains in the body long after its use. In other words, a person could be fully functioning and still fail a drug test. That's unlike alcohol, which moves quickly through the body without leaving a trace.

In addition, trucking companies and many other industries regulated by the federal government must take heed of national laws against marijuana use. For their employees, Washington's law changes nothing, Frischmeyer said.

"If the employer is a federal contractor or governed by the Department of Transportation, they're mandated to test and it's absolutely clear," she said.

That means employees of Mitchell Brothers Truck Lines could not change the rules even if they wanted to, said Kevin Dunn, director of safety for the Vancouver company. The commercial trucking firm employs about 110 drivers that haul intermodal containers in and out of the Port of Portland and also operate flatbeds.

"The U.S. Department of Transportation makes no allowance for those who say they are recreational users," Dunn said. He added that his firm makes its strict stance on marijuana clear on a regular basis through safety training and communication.

Policy not in place

Other employers see no difference between their workers who consume legal marijuana in their off hours and those who enjoy a cocktail or glass of wine in the evening. What a worker does on his or her own time is OK, as long as they don't come to work drunk or high and don't consume on the company's premises, said Betsy Henning, founder and CEO of Vancouver-based marketing and communications firm AHA!

"But we don't have a policy around marijuana and we're not going to create one," she said. "It's probably pretty safe to assume there has been some use of recreational marijuana among our employees."

Whatever the company's approach, Frischmeyer said employers should consider spelling the rules out now as the state prepares to license its first marijuana retailers. The state Liquor Control Board launched a lottery last week for the 334 licenses it plans to issue for recreational marijuana stores across the state. It includes up to 15 stores in Clark County.

"Being clear about the parameters is important," Frischmeyer said. "It's better than there being unknowns and assumptions."

The Liquor Board expects to post a list of applicants for each jurisdiction on May 2, prior to the background checks, financial investigation and other requirements the applicants will have to pass before the licenses are issued, expected in July.

But the law that will ultimately lead to legalized retail sales of marijuana provides no protection for workers who consume it. If they test positive for THC residue, which likely will show up because marijuana metabolites can remain in the body for weeks, their employer won't know whether it was on- or off-duty use, said Alison Holcomb, drug policy director for the American Civil Liberties Union of Washington and author of the initiative.

That could change as Washington further defines marijuana impairment with the new law. The state has already established a new standard, which refers to the detectable amount of a controlled substance, other than a medicine prescribed by a physician, in a driver's bodily fluids. In Washington, drivers with a THC blood content of 5 nanograms, or 5 billionths of a gram, per milliliter of whole blood can be charged with a "drugged driving" violation.

Holcomb sees the new state standard as a starting point that fails to take into account how long the THC residue remains in the body.

"Ideally, we'd like to see Washington state law modified to acknowledge that, unlike alcohol and other drugs, marijuana has an inactive metabolite that can show up days or weeks later," she said.

Such changes could take time to materialize in the workplace. However, the state's new law allowing the recreational use of marijuana is an improvement over Washington's laws allowing medical marijuana, passed by initiative in 1998.

Frischmeyer said some workers may be surprised to know their employer is not required to tolerate their use of medical marijuana on or off the job.

"The Washington statute says explicitly that employers need not accommodate medical marijuana use," she said.

The law was upheld by the Washington Supreme Court, which ruled in 2011 against an authorized patient who was fired for using medical marijuana off the job. The case, Roe v. TeleTech, arose from the 2006 firing of medical marijuana patient Jane Roe (who used a pseudonym to protect her identity). Roe was dismissed from her call-center job at a company called TeleTech Customer Care Management when she tested positive for the medical marijuana her doctor prescribed for severe migraine headaches.

Conflicting laws

Holcomb said the state's medical marijuana law conflicts with federal law by asking the defendant to admit the use of medical marijuana, confess to breaking the law for good reason and ask to be excused.

"They can still be arrested, hauled into court and charged," she said.

What's different for recreational users is that I-502 legalized marijuana and therefore, it has "carved out an area" for employees and employers to enter into an agreement, Holcomb said. "But absent an explicit employment agreement that sets forth employee rights, it's an at-will state and they can be fired," she said.

Holcomb expects it to change over time, just as attitudes shifted among Washington voters who in 2012 passed an initiative to legalize, regulate and tax marijuana. The substance had been prohibited for 75 years, she said.

"I think there will have to be a cultural shift where employers learn more about the difference between active THC and the inactive metabolites that stay in the system," Holcomb said.

But for now, it's difficult to know how the employment laws surrounding marijuana will look years from now, Frischmeyer said.

"I'm not the only one who doesn't know," she said. "Employers don't know, the state liquor board doesn't know, I don't even think the governor knows. We're navigating new geography with this one."