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Posted: September 25, 2013

Marijuana in the workplace

Employers wonder whether to change drug-free policies with Amendment 64

Nora Caley

Colorado lawyers have been fielding phone calls since Nov. 6, 2012, when voters passed Amendment 64, Use & Regulation of Marijuana. The calls have a similar tone and theme.

“The main question on my clients’ minds is, ‘Do we need to do anything?’” says Holli Hartman, an employment law attorney with BakerHostetler in Denver. “There is a misconception that people can smoke marijuana anywhere, and that’s not the case.”

Hartman, who served on the Amendment 64 Implementation Task Force, which Gov. John Hickenlooper created in December 2012, says her employer clients usually want to know whether they need to start drug testing employees, stop drug testing or change their hiring and firing policies. They worry they will be sued if they terminate an employee who uses marijuana during non-work hours.

But the answer may be more straightforward, given Amendment 64’s inclusion of the sentence: “Nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace, or to affect the ability of employers to have policies restricting the use of marijuana by employees.”

That language, Hartman says, allows employers to maintain status quo. “They are relieved they can contribute to creating a safe working environment for their employees,” Hartman says. “But they are concerned they are going to see more employees use marijuana, or they will have employees who think they have a ‘get out of jail free’ card.”

Curtis Graves, a staff attorney with the employment law services department of the Mountain States Employers Council, says he responds to similar calls about marijuana every day. “Can an employer terminate someone for marijuana use? The answer is yes,” he says.

The nonprofit MSEC added roughly 100 words to its sample drug policy, to assist members who want to rewrite that section of their employee handbooks. Employers don’t have to rewrite or change their policies because of Amendment 64, but some are choosing to add a few words to iterate they maintain a drug-free professional environment.

“We recommend it be reviewed every couple of years,” Graves says of the employee handbook. “It makes sense to add that.”

It’s not just the wording of Amendment 64 that protects employers who demand workers remain marijuana-free. The drug is still illegal under federal law. “The state amendment does not trump federal law,” says Kristin Kim Haynes, director of operations for the Independent Electrical Contractors Rocky Mountain chapter (IECRM), which hosted a seminar on the topic recently. “If there were an employee situation, the employer could say we adhere to federal regulations of the United States.” 

 And that’s exactly what some employers have said. One notable case recently involved DISH Network, which fired employee Brandon Coats – a medical marijuana patient who is a quadriplegic – in 2010 after a random drug test. Coats sued DISH and the case eventually made its way to the Colorado Court of Appeals, which in a 2-1 decision in April upheld the firing. The court noted that marijuana is illegal under federal law.

The Coats v. DISH Network case was about medical marijuana, which Colorado voters approved with Amendment 20 in November 2000, but the federal government does not recognize medical marijuana. In the ruling for DISH, one of the judges noted that even under Colorado’s Legal Off-Duty Activity statute, the company was within its legal rights to terminate Coats. That statute protects, for example, tobacco smokers from being fired.

Coats’ attorney, Michael D. Evans, says they filed a petition for certiorari, asking the Colorado Supreme Court to review the case. “If they take the case, that indicates one of two things,” Evans says. “Either they are going to have the same result but change the analysis or change the result and change the analysis.”

Attorney Jessica Peck, who has worked on other marijuana-related cases, says the Colorado Supreme Court has not been especially friendly to medical marijuana cases. “While the employee in the case had a sympathetic story, the Colorado Supreme Court may or may not view the issue differently in light of Amendment 64’s passage,” she says. Peck, who in 2009 was part of a legal team that succeeded in getting an Arapahoe County District judge to overturn Centennial’s ban on marijuana dispensaries, says employers would be wise to address the issue.

Some have silently answered any questions by leaving their policies unchanged.

David Vine, human resources manager for Swingle Lawn, Tree and Landscape Care, points not only to federal rules but also safety issues for the company prohibiting marijuana use among employees. Many of the workers drive motor vehicles for Swingle, so they must comply with U.S. Department of Transportation Federal Motor Carrier Safety Administration regulations.

“Even if they are not driving, they are operating chainsaws and climbing 60-foot trees,” Vine says. “Employees are still subject to pre-employment drug testing and post-incident testing.”

Vine adds that some potential employees seem misinformed about marijuana legislation. “We have interviewed people who are not fully clear about the rules,” he says. “I don’t think the general public knows what is legal.”

Jeff Popiel, president and CEO of Geotech Environmental Equipment, says the change in state laws has not changed the manufacturer’s policy. “Geotech is required to maintain a drug-free workplace because of the work we do for the federal government,” he says. “So we test at hire, accident and reasonable suspicion.” 

Popiel adds that the company mentions the policy at orientation, but it hasn’t been an issue. “It’s just not coming up
in conversations.”

Other companies say recreational marijuana has not arisen in conversations because the company culture is one of employee freedom. 

“We didn’t require drug testing at all, and we still do not,” says Matthew Mayer, director of human resources for Restaurant Solutions Inc., which provides financial software for the service industry. “We believe what happens off the clock is what happens off the clock.”

Mayer says RSI does have an employee guidebook and there are rules against using drugs or alcohol in the workplace. In general, though, the company wants its employees to be happy, healthy and productive. “I don’t want to discount what other industries are doing,” Mayer says. “I understand companies have their own polices, but you have to embrace people and who they are. Really it is none of our business what they do outside business hours.”

Nora Caley is a freelance writer specializing in business and food topics.

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Readers Respond

I agree with the previous comments. I run a pawn shop and have had a serious problem with employee drug abuse (word circles back to me), employee cash theft due to drug use and no positive drug tests it's absolutely baffling unless there were drugs that I wasn't testing for. After 10 years I gave up on the drug tests, they are completely worthless. By Abe on 2013 09 28
Actually not only can those drugs not be tested but drug users who know it most likely have access. The silk road is a online marketplace where someone can buy almost any drug and even obtain things like phony $100 bills for a currency called bitcoins. Access to this appears to be pretty basic and it seems anyone can get access via a special web browser. So the tests don't check for these drugs, that fact is common knowledge among drug users, many probably have access to marijuana and drugs that can't be detected through the same online resource, the drugs that aren't tested are very addictive very dangerous drugs and companies seem blissfully unaware that they are potentially being sold a big pile of lies when the drug testing companies say negative. By Robert on 2013 09 28
According to the stoners themselves there are drugs designed to pass drug tests and the tests do not check for Psilocybin, LSD, DMT or Mecalline at all. According to this testing library exstacy can only be tested after 1-5 days of use, ketamine can only be detected 2-4 days after use, LSD can only be detected 1-4 days after use and shrooms can only be detected 1-3 days after use. None of these drugs are detected AT ALL in the standard drug tests that most companies order. So just a note to employers assume among drug users this is common knowledge. By Erica on 2013 09 28
There should probably be testing on the job for marijuana. The problem is that marijuana is stored in body fat, businesses are testing if the employee has smoked in the last 3 weeks to 8 weeks depending on the person's metabolism and activity level. Compare this to Ketamine, LSD, Shrooms and Exstasy, which can only be tested in someone's system for up to 8 hours after use, except Shrooms which are not detectable in urine as they are evacuated out the bowels as a poison. Employees may be drawn towards any of these drugs which are much more addictive and dangerous than marijuana in order to pass marijuana tests, as is a common occurrence among DUI random testing punishment recipients. Drug testing activity drives another more dangerous drug market in essence and may be better left to professions where physical safety must be prioritized. By Andrew on 2013 09 28
Great article that is going to be more and more relevant with Mary Jane being sold in stores at the beginning of this next year. By Jordan on 2013 09 24
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