Pubdate: Sun, 18 Nov 2012
Source: Seattle Times (WA)
Copyright: 2012 The Seattle Times Company
Contact:  http://seattletimes.nwsource.com/
Details: http://www.mapinc.org/media/409
Author: Jonathan Martin
Page: B1

THE BATTLE IS ON: I-502 VS. DRUG-FREE POLICIES AT WORK

Is Private Pot Smoking Employers' Concern?

Drug Tests Detect Use, Not Impairment

Marijuana is legal in Washington on Dec. 6, but the new state law
gives no protection from workplace drug policies. Many employers will
continue to rely on tests showing marijuana use - even from weeks ago
- - rather than on-the-job impairment.

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 blood - 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 people. "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."

[sidebar]

Marijuana legalization

Initiative 502, approved by voters Nov. 6, legalizes recreational
marijuana use, 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 buy 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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MAP posted-by: Matt