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Updated Monday, November 19, 2012 at 11:46 AM

The battle is on: I-502 vs. drug-free policies at work

By Jonathan Martin
Seattle Times staff reporter

Anyone with a job who plans to attend a Dec. 6 marijuana "Legalization Day" party might as well pack their employment contract along with their rolling papers.

Voters this month agreed to make marijuana legal for recreational use for adults 21 and up, but the new law gives no protection in the workplace. Show up with marijuana in your system — even residual amounts from a few weeks back — and there's no guarantee your boss will look the other way.

In this new frontier of drug policy, employers could simply view employees' after-hours use of marijuana like alcohol, intervening only when necessary. But few appear to be loosening bright-line drug policies, as if Initiative 502 never passed, say the region's top employment lawyers.

On Friday, the city of Seattle joined other employers in reminding its 10,500 workers that, because it gets federal funding, and because federal law still considers marijuana a banned substance, it must maintain a drug-free workplace.

But across the state, enforcing such policies for after-hours use is likely to be contentious, especially for unionized workers, because most workplace marijuana tests don't differentiate past use — even weeks prior — from the impairing buzz of a freshly smoked joint.

"We think 502 changes everything," said Dan Swedlow, senior staff attorney at the 16,000-member Teamsters Local 117. "We're clearly headed for a showdown with some employers."

It may not be an issue for many Puget Sound workers: Pre-employment testing is rare among technology and creative-class jobs, and random testing even rarer.

But there is no wiggle room for many manufacturing and transportation jobs, and even less so in public safety, and national employers appear unlikely to flex policies for Washington state.

"I think people who voted for 502 will be really surprised that if you use it in your home, in accordance with the initiative, you can still get fired," said Seattle employment-law attorney Michael Subit.

No "gray area"

Workplace drug tests became widespread after President Reagan issued an executive order in 1986 mandating drug-free policies. A federal standard intended for big-rig truckers — 50 nanograms of carboxy-THC per milliliter of urine — became widely adopted by employers in most industries, from bakers to warehouse workers.

Courts across the country have upheld the right of employers to drug-test and fire workers with THC in their urine, even those with valid medical marijuana authorizations. The Washington Supreme Court in 2011 ruled in favor of employers, upholding the firing of a call-center worker who used marijuana to treat migraines.

One of the few groups exempted from drug testing: elected officials, thanks to a 1997 U.S. Supreme Court case, Chandler v. Miller.

Employers have good reasons — from productivity to absenteeism to cheaper insurance coverage — to maintain drug-free workplaces, said James M. Shore, an employment lawyer with Seattle's Stoel Rives.

In the wake of I-502, he advises employers to update policies to prohibit drugs illegal under state or federal law — "with an exclamation point on federal law," he said — and ban any detectable amount. "It takes the gray area away."

Mark Berry, an employment-law attorney with Davis Wright Tremaine, said employers like "a bright-line standard" of zero tolerance because marijuana affects people differently, according to past usage and body size.

"It may or may not relate to impairment, but because there is a widely used standard, that's what is used," he said.

Boeing and the Puget Sound Naval Shipyard both reiterated their zero-tolerance policies last week, citing the unchanged federal ban on marijuana and drug-free workplace requirements. "Unless or until there is further specific guidance issued at the federal level allowing for marijuana use in some (or any) situations, as federal employees we remain accountable to comply with federal law," the shipyard said in a statement.

Testing for pot

At Swedish Medical Center's urinalysis collection clinic in Ballard, the toilet water is bright blue, fresh samples must be body temperature and staff keep a sharp eye out for urine-test cheating devices like the "Whizzinator."

Those tried-and-true security measures are designed to ensure accurate test results for the clinic's 500 or so customers — government agencies, which follow mandatory federal Department of Transportation guidelines, and private companies, most of them in the maritime industry.

Marijuana consumed within the past seven to 10 days usually triggers a positive result, said Swedish's Dr. Ray Jarris. In the future, tests — such as oral swabs — may be able to more precisely pinpoint recent usage, but not yet, he said.

"The issue of marijuana impairment is a really difficult issue," said Jarris. "But that's not what the (federal) DOT cares about, and it's not what most employers care about."

That frustrates Paul Armentano, a marijuana-science expert at NORML, a leading national drug-reform group. The tests detect carboxy-THC, a non-psychoactive compound in marijuana stored in fat cells, not the active THC, which provides the high.

That means a positive drug test "could be someone who used two grams six hours ago, or someone who used two weeks ago," he said.

The Nov. 6 passage of legalization measures in Washington and Colorado, as well as medical-marijuana laws in 18 states, reflect a new public attitude about marijuana and civil-liberties issues related to testing, he said.

"I think we're in a very different climate than we were 25 years ago, when these (drug-testing) policies came into vogue," he said.

Human-resources managers for Seattle and King County, in interviews last week, acknowledged that the tests detect use, not impairment, and are researching other options.

"The question is, what does this test tell us?" said Nancy Buonanno Grennan, human-resources director for King County, which employs about 16,000. "Does it test for impairment? We're checking on that."

No "green light" Dec. 6

As public and private employers puzzle through I-502's consequences, Swedlow, the Teamsters' attorney, expects to see an "onslaught" of marijuana-related appeals.

In 2011, he won an arbitration decision for a forklift driver suspended from a Seattle cold-storage warehouse after testing positive for marijuana.

It helped, Swedlow said, that the driver had a medical-marijuana authorization for painful gout, but the arbitrator found that the employer's "legitimate interest in an employee's off-duty private use of psychoactive substances is considerably less than clear."

Those same arguments can be applied to recreational marijuana use starting Dec. 6. "Once it's legal, there's just not a legitimate interest for an employer to say, 'You tested positive, you're fired,' " Swedlow said.

That may be different for police, who are sworn to uphold state and federal law. "The fact that the federal government maintains (marijuana) is a Schedule I drug puts us in a position," said Seattle police spokesman Sean Whitcomb. The department is consulting with its lawyers on the issue, he said.

Sue Rahr, head of the Washington Criminal Justice Training Commission, said anyone who is thinking about becoming an officer should think twice about marijuana use.

Applicants for law enforcement are commonly asked if they've used marijuana in the past three years, or more than 10 times in the past 25 years. An affirmative answer may still disqualify an applicant because of the federal ban, said Rahr, a former King County sheriff.

"The unintended consequences are pretty worrisome at this point," said Rahr. "I've told my son and his friends: 'Don't consider it a green light on Dec. 6 unless you know what you're doing with the rest of your life.' "

Nonetheless, Dec. 6 is likely to be a party in Seattle.

The "Legalization Day in Washington State!!!" Facebook page has 123 confirmed attendees for a smoke-in at Seattle Center, encourages people to bring an ounce of pot, a friend and "any left over fireworks."

Jonathan Martin: 206-464-2605 or jmartin@seattletimes.com. On Twitter @jmartin206.

Marijuana legalization

Initiative 502, approved by voters Nov. 6, legalizes recreational marijuana use for adults 21 and up, but it does not change state employment law. Here's what I-502 does:

Possession: Starting Dec. 6, state criminal penalties for possession of 1 ounce of marijuana (or 1 pound in cannabis-infused food, or 72 ounces of cannabis-infused drink) will be eliminated. Public consumption of marijuana can mean a $50 fine, similar to alcohol consumption in public.

Retail stores: It will be illegal to sell marijuana for recreational use anywhere except state-licensed marijuana stores; those stores won't open until at least December 2013.

Federal law: Does not affect the federal ban on marijuana. Gov. Chris Gregoire last week asked federal authorities if they will intervene, but did not get an answer.

Employment law: Does not change the right of employers to drug-test employees.


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