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Pot laws still hazy in workplace

WASHINGTON — After getting busted himself, Seattle City Attorney Pete Holmes said 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.

And workplace attorneys said 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 a 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 pot 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 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 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.”

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.

In a closely watched lawsuit last year, the Colorado Supreme Court upheld the firing of Brandon Coats, a customer service worker who lost his job at Dish Network after failing a random drug test. He said he used medical marijuana only at home, never at work, to help him deal with spasms he suffered after a car accident left him paralyzed.

And in 2011, the Washington Supreme Court ruled against a woman — referred to in court documents only as Jane Doe — who used marijuana at home for migraine headaches and lost her job at a TeleTech call center when she tested positive for marijuana.

Courts could have much to sort out in the future: While federal law says that marijuana has absolutely no medical value, 10 states that have already legalized medical marijuana have included anti-discrimination provisions that require employers to accommodate workers who use medical marijuana.

The 10 states — Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, New York, Pennsylvania and Rhode Island — have also made it illegal for an employer to not hire or to discriminate against either a job applicant or employee who uses medical marijuana.

“It’s a patchwork of differing regulations for employers across the country, and this November is just going to increase that patchwork by some degree,” Meneghello said.

On Nov. 8, voters in five states — California, Arizona, Massachusetts, Maine and Nevada — will decide whether to fully legalize and regulate marijuana.

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.”

Meneghello said employees who preferred marijuana over drinking felt singled out by drug testing because THC remained in the bloodstream much longer than alcohol. An employee who gets “completely blotto” with alcohol on Sunday 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.”