Last November 6, voters in Colorado and Washington State approved Amendment 64 and Initiative 502, respectively, making it legal for anyone over the age of 21 to possess small amounts of marijuana for recreational use. For college kids, stoners, and aging fans of the Grateful Dead, it was a cause for celebration. For the police tasked with enforcing each state’s drug laws, it made life a little easier. For electrical contractors across Washington and Colorado, though, it raised some serious questions: Now that it’s legal to get high, is my drug testing policy still valid? And if not, how can I update it to not only comply with the new law, but also to be able to keep my employees safe on the job?
“What I tell my clients is, you’re not trying to be the morality police or tell people what they can or can’t do on their personal time,” says Kate Raabe, a Denver-based attorney specializing in employment law for Stettner Miller, P.C. “But when those employees walk onto a job site, they’re your responsibility. So if they’re doing something off-site (on their own time) that carries over to the employment environment, you have every right to get involved.”
Raabe participated in a seminar last January, hosted by the Independent Electrical Contractors Rocky Mountain (IECRM) and designed to answer local contractors’ questions about the new law. “It’s been a hot topic,” says Kristin Haynes, director of operations for the IECRM. “A lot of our contractors wondered, ‘Oh, now our employees think they can get away with it.’”
They had reason to be concerned. Haynes reports that member contractors noticed an uptick in positive tests after the law went into effect in early December. Robert Lyle, the employee assistance program coordinator for NECA’s Puget Sound chapter, which covers the Seattle-Tacoma area, noticed a similar, modest increase in test failures after the first of the year. “I heard, ‘But it’s legal now’ from a lot of people,” Lyle says with a chuckle. “Yeah, it’s legal, just like alcohol, but you can’t have it in your system.”
So in the case of the IERCM, the seminar was a chance for contractors to clear the air, so to speak. “They wanted to get together to share best practices, make sure they were saying the right things, their handbooks had the right verbiage, making sure what their liabilities were,” Haynes says.
What was the message that employment attorneys like Raabe conveyed to all 50 contractors in attendance? Keep on doing what you’re doing.
Just say yes… to testing
The strongest legal justification for staying the course may come from the federal level. Despite the announcement from U.S. Attorney General Eric Holder in August that his office would not interfere with the legalization efforts in Colorado and Washington, marijuana remains a Schedule 1 drug, the highest classification under the Controlled Substances Act of 1970. “The memo that [Holder’s] office put out made it very clear that they’re not waiving the law,” Raabe says. “It’s just a matter of prosecutorial discretion. They only have so many resources and so many people to enforce the law, so they’ll continue to address the high-priority issues like organized crime and gangs.”
But because marijuana will continue to be outlawed at the federal level — at least for the time being — any employer can lean on that fact as a reason to continue enforcing its drug policy.
“As far as the feds are concerned, pot is still illegal, so it’s business as usual for us,” says Barry Sherman, executive director of NECA’s Puget Sound chapter.
On matters related to its Electrical Industry Drug-Free Workplace program, the chapter takes its marching orders from the Portland chapter. Last January, members received a letter stating in no uncertain terms that the new state law would have no effect on its policy: “At this time the Electrical Industry Drug-Free Workplace [program] will continue to follow the federal law, which does not allow the use of marijuana whether for medical or recreational purposes.”
Even setting aside federal prohibitions, state laws in both Washington and Colorado favor employers, particularly in the case of drug testing. Colorado’s Amendment 64 makes it clear that the new law does not prohibit employers from continuing to test their employees: “Nothing in this section is intended … to affect the ability of employers to have policies restricting the use of marijuana by employees.”
David Scott, human resources manager for Englewood, Colorado-based Encore Electric, conferred with the firm’s attorneys in advance of the November 6 vote and prepared an email he could send to employees, alerting them to the fact that its zero-tolerance policy would not change. “All I had to do the morning after the vote was hit send,” he says.
Encore, in business since 2003, has a rigorous testing policy: Employees are tested pre-employment, post-accident, for reasonable suspicion, and randomly. If employees have a substance abuse problem and bring it to the attention of a manager, in many cases, the company will be willing to help them get treatment. But if they aren’t upfront and test positive, “It virtually always leads to termination,” Scott says.
The issue is a little murkier in Washington. Initiative 502 did not address drug testing policies, but as Alison Holcomb, an attorney with the ACLU of Washington State and the leader of the legalization movement, points out, it’s still an at-will state. “Our state Supreme Court has already ruled that even a medical marijuana patient whose job was not public-safety sensitive could be fired for testing positive,” she says. “This is mainly due to the fact that marijuana remains illegal under federal law. However, Washington is an at-will state, so employers can fire employees because they drink alcohol or smoke cigarettes, even if that activity happens after hours, off-site, and doesn’t impact job performance.”
The electrical trades, particularly union shops, have an extra, built-in layer of protection. Drug policies, including restrictions on use and testing requirements, are written into the collective bargaining agreement. Lyle, the EAP in Seattle, points out that IBEW electricians who fail a test are subject to a variety of consequences that range from returning to work but attending a drug information seminar to being suspended and required to complete an inpatient treatment program. It’s Lyle’s job to interview everyone who fails a test and decide what course they should take. “Obviously most first-time marijuana failures end up having to attend the educational class,” he says. “But no matter what their personal beliefs about the drug are, they’re going to get some level of treatment from me.”
There’s an ethical reason for employers not to change their drug policies, though, that, according to everyone interviewed for this story agrees, trumps the legal one: safety.
“You can argue about whether marijuana is really that dangerous,” Raabe, the Colorado attorney, says, “but if you’re an employer on a job site with electricians or any other kind of tradespeople who are working with heavy equipment or climbing ladders, you want to err on the side of caution.”
“The bottom line is that this all ties back to employee safety,” says Scott, of Encore Electric. “We want to keep our guys safe at work.”
When he sent out that email reaffirming the company’s drug policy, he not only sent it to his employees but also to their families. Within hours, he got a reply from one electrician’s wife, who simply stated, “Thanks for taking a stand on this and keeping my husband safe.”
How high is high?
There is one potential hitch to the new laws. Unlike alcohol, which can leave the bloodstream within 12 hours of consumption, marijuana can stick around quite a bit longer — in some cases, days longer. So it’s conceivable that an employee could test positive for marijuana despite not showing any outward signs of impairment. “Therein lies the rub, huh?” says Scott. “My hope is that in the future testing will get better. But until that day, we have to use what we use.”
Complicating matters is the fact that because marijuana has been illegal up to this point, few, if any, studies have been conducted to determine what constitutes impairment. Colorado’s Amendment 64 doesn’t address that topic. Washington’s I-502 does — at least in the case of operating a motor vehicle — setting the bar for impairment at 5 nanograms of THC per milliliter of blood. But whether that level would stand up as evidence of impairment in the workplace still remains to be seen. At any rate, science is now put in the unenviable position of having to catch up with the law. As a result, employers often have no choice but to stand by zero-tolerance drug policies. “A lot of people can function fairly well with pretty high levels of THC in their system,” Lyle says. “However, if there’s an accident, there’s no solid research to stand behind you in a case concerning liability.”
Of course, that’s not to say that an electrician couldn’t get high on a Friday night, come to work on a Monday morning with THC still in his system, show no signs of having smoked, and go about his work without incident. The only way to know for sure would be if he were caught with a random test. However, as Raabe points out, unlike Encore, very few of her clients include random testing in their policies. “Honestly, the only reason they do it is if they have some kind of a feeling that their workforce is just running rampant with drugs, or they have a huge amount of anonymous tips that people are buying and selling drugs everyday on the job site,” she says. “It would have to be something that indicates to them that it’s a major problem. Maybe in the past they only tested after accidents and injuries, and suddenly this year 70% of the people who are tested were positive, instead of 10% in the past. In other words, the random testing could be employed as a deterrent.”
Not only that, it could reveal problems an employer didn’t know it had. The question then is how to deal with it. Don’t get soft is the simple answer. “Let’s say someone gets into an accident the day after they test positive but convinced you they weren’t under the influence, and you let them go back to work?” Raabe says. “Are you going to err on the side of maintaining a safe job site? Or are you going to err on the side of saying, ‘Oh well. I don’t know, but your story sounds good, so okay.’”
Because of the uncertainties surrounding testing methods, Raabe does anticipate that some drug-related terminations will result in lawsuits. Conceivably, an employee who fails a test and loses his job could argue that a zero-tolerance policy is just simply too harsh in the case of marijuana, particularly because it can stick around in the system for so long. But she also doubts such a suit would hold up in court — in large part because of precedents set by Colorado’s medical marijuana law.
As it is in Washington, pot has been legal in Colorado for medical use for several years now. And according to Raabe, there have been cases in which an employee was fired for testing positive, despite having authorization to smoke to treat an illness. In each instance, the prescription did not protect the employee from his or her workplace’s drug policies. “So if the courts are going to say even under medical marijuana circumstances that that argument doesn’t fly, the chances of them changing their mind for recreational marijuana are lower,” she says.
So in the end, ironically, the most substantial changes to American drug policy over the last 50 years — at least in two states, anyway — will have virtually no effect on contractors’ ability to maintain a drug-free workplace. Chances are that won’t change as laws continue to loosen nationwide. In the past, “just say no” was a rallying cry for kids tempted by peer pressure to experiment with pot. Now it may become a mantra for employers who feel pressured into easing up on the very policies that keep their work force safe.
Halverson is a freelance writer based in Seattle. He can be reached at [email protected].
SIDEBAR: Passing the Proverbial Joint
Colorado and Washington lead the legalization charge, but they won’t be alone for long. Here are the next states most likely to go pro-pot.
Alaska
If organizers of a pro-pot initiative can collect signatures from 30,169 registered voters by December, the initiative will appear on the state’s primary election in August 2014.
Arizona
The Grand Canyon State is mounting a pot push that will require organizers to gather nearly 260,000 signatures by July 3, 2014, for the issue to be put to a vote next year.
California
After failing to pass a legalization initiative in 2010, pot proponents are trying again with a new signature-gathering movement that could put the issue before voters in 2014.
Massachusetts
Efforts are underway (but in the very early stages) in the ultra-liberal state to allow voters to decide on marijuana’s legality next year.
