Le­gal pot com­pli­cates drug-free work poli­cies

In Washington state and Colorado, em­ploy­ers pon­der laws’ ef­fects. ‘The un­cer­tainty will cause havoc ... and ham­per ef­forts (for) drug-free work sites.’

Austin American-Statesman - - BUSINESS - By Kris­ten Wy­att and Gene­john­son Mark La­timer,

Pot may be le­gal, but work­ers may want to check with their boss first be­fore they grab the pipe or joint dur­ing off hours.

Busi­nesses in Washington state, where the drug is le­gal, and Colorado, where it will be by Jan­uary, are try­ing to fig­ure out how to deal with em­ploy­ees who use it on their own time and then fail a drug test.

It is an­other un­cer­tainty that has come with pot le­gal­iza­tion as many ask how the laws will af­fect them.

“There’s just an in­cred­i­ble amount of gray right now” how mar­i­juana le­gal­iza­tion af­fects em­ploy­ers, said San­dra Ha­gen Solin of the North­ern Colorado Leg­isla­tive Al­liance, a coali­tion of cham­bers of com­merce. Po­lice de­part­ments are es­pe­cially wor­ried. Of­fi­cers take oaths to pro­tect all laws, state and fed­eral. In this case, pot is still pro­hib­ited un­der fed­eral law.

The Seat­tle po­lice de­part­ment is re­view­ing poli­cies on drug use by of­fi­cers or prospec­tive of­fi­cers, spokesman Sgt. Sean Whit­comb said, adding it’s un­likely off-duty of­fi­cers will be al­lowed to use pot. The

As­so­ci­ated Builders and Con­trac­tors de­part­ment might ease its re­quire­ment that ap­pli­cants not have used mar­i­juana in the pre­vi­ous three years.

The Den­ver po­lice de­part­ment is re­view­ing Colorado’s mar­i­juana law, which goes into ef­fect in Jan­uary. The de­part­ment has no im­me­di­ate plans to change em­ploy­ment prac­tices, spokesman John White said. “Mar­i­juana is still il­le­gal at the fed­eral level, so of­fi­cers would not un­der any sce­nario be al­lowed to use mar­i­juana,” he said. White wasn’t sure about pre­em­ploy­ment pot use.

Other em­ploy­ers, es­pe­cially those with fed­eral con­tracts, are con­cerned what the new laws mean for them. One group of Colorado busi­nesses has pleaded with the White House for clar­ity, which hasn’t said if it would sue to block the law.

“The un­cer­tainly cre­ated will cause havoc for our mem­bers and ham­per their ef­forts to main­tain drug-free work sites,” wrote Mark La­timer, head of the Rocky Moun­tain chap­ter of As­so­ci­ated Builders and Con­trac­tors.

The havoc La­timer refers to is con­fu­sion over a law passed with cig­a­rette smok­ers in mind. Colorado’s Law­ful Off­Duty Ac­tiv­i­ties law says work­ers can’t be dis­missed for le­gal be­hav­ior off the clock. A case pend­ing in a state ap­peals court could set­tle the ques­tion.

The case in­volves Bran­don Coats, a tele­phone op­er­a­tor for Dish Net­work. Par­a­lyzed in a teenage car crash, he’s also been a med­i­cal mar­i­juana pa­tient in Colorado since 2009. Coats was fired in 2010 for fail­ing a com­pany drug test, though his em­ployer didn’t claim he was ever im­paired on the job.

Coats sued to get his job back, but a trial court dis­missed his claim in 2011. The judge agreed with Dish Net­work that med­i­cal mar­i­juana use isn’t a “law­ful ac­tiv­ity” cov­ered by the law. Coats ap­pealed, and the state Court of Ap­peals has agreed to hear the case but hasn’t set a date.

Ac­cord­ing to the Na­tional Con­fer­ence of State Leg­is­la­tures, more than half the states have laws that pro­tect work­ers who smoke cigarettes off the clock. Colorado’s law ex­tends to all le­gal ac­tiv­i­ties, though Washington state doesn’t have a sim­i­lar statute.

“If you’re do­ing it at home and it’s not il­le­gal and it’s not im­pair­ing your work per­for­mance, you should be pro­tected,” said Coats’ lawyer, Michael Evans.

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