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Workplace drug policies in the era of legal pot

On July 2, the workforce in Washington state became the second in the nation to have legal access to recreational marijuana. Although the access was limited by supply, it didn’t stop us from making employment headlines. And we’ve only just begun!

My friends have taken to calling me the Marijuana Madame. Not because I’m a partaker of pot myself, but because I’ve been writing about the impacts of medicinal and recreational marijuana in the workplace now for the last couple years. It’s put me in this funny place where I now get calls from other HR professionals, and even reporters, asking me for updates and information. So this seems like a good time to update our pot conversation, because we have already learned some lessons from “Day One.”

Mike Boyer of Spokane has become a bit famous for being Washington’s first purchaser of legal recreational marijuana. He then most likely became Washington’s first employee to receive a text from his employer telling him to take a drug test within 24 hours, or be fired. Boyer informed his employer that he would fail the test, and he was told he would then be terminated. Yet another first for Boyer. But he wasn’t done! Boyer’s other part-time employer then called him, demanding he come in to take a drug test — probably making Boyer the first employee in Washington to be ordered to take two drug tests and to be fired twice on the first day that recreational marijuana became legal.

Isn’t it great to be an employer in the middle of this grand experiment with marijuana? We here in Washington, and employers in Colorado, will be walking through this marijuana minefield while the other 48 states sit back and watch. We certainly can’t fault Boyer’s employers for making any mistakes. In fact, I feel a lot of empathy for them. Imagine seeing your employee on the news taking a big puff of pot, knowing your clients, competitors and the rest of your employees are seeing it too!

What can we, as employers, learn from what happened with Boyer?

Go back to your company’s Drug Free Workplace Policy and review what it says. Yes, marijuana is legal in our state, but as we all know, it remains federally illegal. Your policies must be very specific as to your company’s stance on marijuana. Make your employees aware of your policies and the consequences. The Washington Liquor Control Board is implementing our marijuana laws. They have affirmed that businesses retain the right to implement and maintain policies regarding marijuana in the workplace.

That being said, you may ask yourself, as True Blue, Boyer’s employer, did: What is your interest in your employee’s use of marijuana outside of work. Is your concern that testing is not as precise as it is for alcohol, so you cannot be certain whether or not an employee is impaired on the job? Or is your concern that you do not want an employee using legal marijuana in their personal time, as Boyer was?  

In the end, True Blue recognized that Boyer was legally purchasing, possessing and consuming pot outside of work, which had no affect on him in the workplace and was no concern to them. This is why they ultimately reinstated him. 

We made a little marijuana employment headlines in the Puget Sound ourselves when Seattle’s elected city attorney attended the grand opening of Seattle’s new pot store and bought marijuana on Day One, bringing his pot purchase back to his office in City Hall.  The issue with this is that the City of Seattle receives federal funds and thus must abide by the terms of the 1988 Drug-Free Workplace Act, something which the city attorney ought to be familiar with. The city has a strict policy, conforming with the Drug-Free Workplace Act, which specifically prohibits employees from possessing illegal substances on city premises, or while conducting city business on or off of city premises.  This seemed to put Holmes squarely out of compliance with the city’s policies, which would subject an employee to disciplinary action.

After a lot of back and forth in which Holmes and others insisted he hadn’t violated policies (without really explaining how he didn’t violate them), Holmes voluntarily made a contribution to a charity and offered an apology. This probably has a lot to do with the fact that HR people can’t really discipline elected officials, who aren’t hired and fired as employees, but are hired and fired by the voters.  

So what may the rest of us employers learn from the Holmes and Seattle situation? I think the lesson here is consistency. Our company policies on marijuana need to be enforced thoughtfully and consistently in order to be taken seriously. If the department head, business owner, or anyone else in a position of authority gets to walk sideways around the policy, we can’t hold those further down the food chain to the letter of the law.  

And how about our friends in Colorado, who are ahead of us on this quirky path we’ve chosen to travel? Anything we can learn from them? Just last year Dish Network’s firing of a medical marijuana patient who failed a drug test was upheld by the Colorado Court of Appeals. That case will now be heard by the Colorado Supreme Court. But so far, it appears that continuing to rely on federal law as a basis for policy remains a sound practice. But one thing that has changed in Colorado, according to a survey by the Mountain States Employers Council, is that 20 percent of employers surveyed have implemented more stringent drug-testing policies since the legalization of recreational marijuana, and only 2 percent have relaxed their testing.

I’m not sure that the voters anticipated the ramifications of this tectonic shift when they approved the legalization of recreational marijuana in Washington. But it does make life a bit more interesting and challenging for employers who are faced with hiring, managing and disciplining employees. We’ll just keep learning together, share best practices, and over time we’ll get it all figured out.

• Julie Tappero is president and owner of West Sound Workforce, a professional staffing and recruiting company based in Poulsbo and Gig Harbor. She can be reached at julie [at] westsoundworkforce [dot] com.


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