Pot law creates legal haze for businesses

Advocates for the initiative that legalized marijuana say its language is clear: Employers' substance abuse policies won't change under the new law.

But employers and their attorneys worry it's not that simple.

Now that parts of Initiative 502 went into effect Dec. 6, some employers are exploring options and there's a growing sense they need to narrow the language in their employee rules.

"I'm going to have to look at our policy," said Greg Luring, co-owner of numerous McDonald's franchises in Central Washington, following an informational meeting for employers hosted recently by the public safety advocacy group Safe Yakima Valley.

"It's up to us (employers) to be clear."

Yakima attorney James Elliott told employers gathered at the Howard Johnson Hotel to eliminate vague language, such as "under the influence" and "illegal drugs" from their policies. Elliott said to replace those terms with language such as "any detectable amount," "controlled substance" and "illegal under federal law."

"If you have a policy, look at it," Elliott said. "Dust it off."

Gary Lofland, another Yakima attorney and employment specialist, told employers the law doesn't stop them from testing their employees, but that doesn't mean there won't be challenges coming.

"My view is it doesn't change anything," Lofland said.

Lofland and Elliott, both attorneys with Velikanje Halverson, noted that a Seattle Teamsters official recently said some employers were "headed for a showdown," indicating that legal challenges and arbitration over drug policies could be coming.

In a telephone interview, Teamsters Local 117 attorney Dan Swedlow said he believes the law changes things for those employers without negotiated substance abuse policies in their union contracts. Being stoned on personal time and not while on the job should be treated the same way employers already treat alcohol use, he said.

"After Dec. 6, if a person says they smoked pot recreationally, there's no just cause" for termination, he said. "The burden of proof for discipline is always on the employer."

Swedlow said there are caveats to that stance that favor employers. One is that a union agreement that includes an agreed-upon drug policy that forbids any detectable amount of THC, the psychoactive chemical in marijuana, may be enough cause for termination regardless of when the employee used the drug.

"If a policy says absolute no drugs, and it's collectively bargained, then that's all there is to it," Swedlow said. "If there's a unilaterally implemented employer policy just handed to the union, that's not going to govern."

Lofland said the June 2011 state Supreme Court ruling in Roe v. TeleTech, which determined an employee registered as a medical marijuana patient in the state is not protected from an employer's drug testing policy, also protects employers' policies from tolerating legal pot use.

Swedlow said different standards can apply in arbitration cases, such as the challenge he won in December 2011 on behalf of a medical marijuana patient whose employer had suspended him when a urinalysis tested positive for marijuana use.

The arbitrator in that case noted that Seafreeze Cold Storage, which has facilities across the country, including Seattle, used a drug policy that the union hadn't agreed to that subjected employees to discipline for off-duty conduct.

In the decision, the arbitrator said the employer never argued that the levels of marijuana in the employee's drug test established impairment on the job.

"If an employer were not required to establish reasonable suspicion and/or apparent on-the-job impairment, it is difficult to imagine a limiting principle that would protect legitimate employee privacy interests," the arbitrator wrote in sustaining the employee's grievance.

Any exceptions would not cover federal employees or anyone with a commercial driver's license, as federal controlled substance laws and required testing still apply.

City of Yakima spokesman Randy Beehler said the City Council voted to put an addendum on the city employee drug policy in recent weeks that reaffirms the policy as it stands. Beehler said the city already does not conduct random drug testing or a pre-employment drug screening, but employees are still tested if there's reasonable suspicion they're impaired on the job.

"Impairment is the bottom line," Beehler said.

Swedlow said union employees in general are not interested in changing collectively bargained substance abuse policies.

In workplaces where those already exist, he says, employees are accustomed to working under it and would likely not forgo other benefits or wage increases in negotiations simply to do away with aspects of the company's drug policy.

However, Swedlow said, individual union branches such as his may still bring it up when it comes time for negotiations.

"We'll certainly put it on the table," he said.


By Mike Faulk, Yakima Herald-Republicmfaulk@yakimaherald.com, 509-577-7675, twitter.com/Mike_Faulk

Source: The Yakima Herald Republic