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Employers re-emphasize drug-free policies, despite legalization of marijuana

Policies reinforced despite two states' new laws

Employers re-emphasize drug-free policies, despite legalization of marijuana

Companies with employees in states that have legalized recreational use of marijuana are reemphasizing and, in some cases, strengthening their drug-free workplace policies and safety procedures.

Marijuana use continues to fall under most companies' existing policies that bar employees from coming to work impaired, whether by drugs or alcohol, according to employers in Colorado and Washington, the two states that have legalized recreational marijuana use.

“It's never been acceptable to show up to work drunk or high or anything else, so that really hasn't changed at all,” said Scott D. Collins, director of risk management at Denver-based publisher MediaNews Group Inc., a division of New York-based Digital First Media that publishes the Denver Post and other newspapers.

“There is a misconception among the masses that it's OK for employees to smoke marijuana now, but most employers have not changed their policies at all. In fact, many have inserted a paragraph in employee handbooks stating that they are aware of the legalization, but that it hasn't changed their policy,” said Kara Craig, staff counsel at Washington Employers Inc., a Seattle-based employer coalition with about 1,000 members statewide.

Although employers with zero-tolerance policies say they apply them to an employee who tests positive for marijuana use, legal experts and employers are closely watching a Colorado Supreme Court case involving an employee fired for off-duty medical marijuana use.

“Most employers have been warned by their attorneys that they now need to revise their employment policy manuals if they want to ensure a workplace that's 100% drug-free,” said Hilary Bricken, an attorney in charge of the Canna Law Group, a practice group of Harris Moure P.L.L.C. in Seattle.


“Now that marijuana is legal under (Washington) state law, if an employer is tolerant of alcohol consumption or prescription pill use, there's a good argument to be made that marijuana should be treated no differently, especially if an employee is functional at work but only uses marijuana, for example, on the weekend,” Ms. Bricken said. “So many employers are revamping their workplace policies to be stricter than before to notify employees that marijuana use is strictly prohibited.”

While most employers in Colorado, where legal recreational sales of marijuana began Jan. 1, test employees for marijuana usage, their disciplinary policies vary, according to a January employer survey by the Denver-based Mountain States Employers Council Inc. Of more than 330 employers polled, 77% said they test employees for drug use either in pre-employment screenings or during employment.

When asked how they discipline workers with one positive marijuana test, 53% said they terminate such workers, while 12% return the employee to work under probationary conditions, 9% send the worker to rehabilitation and 8% suspend the employee without pay, according to the survey.

When employees are caught using marijuana again, 68% of employers said they terminate such workers, while 8% said the punishment “depends on the situation,” according to the survey.

The prevalence of drug testing in Colorado likely reflects companies' federal compliance requirements, rather than the state's marijuana laws, said Curtis Graves, staff attorney for the employers council. He said most surveyed employers have at least one employee who is covered by federal standards that ban drug use, such as drivers regulated by the U.S. Department of Transportation.


CoorsTek Inc., a Golden, Colo.-based technical ceramics manufacturer with about 3,400 employees globally, has a zero-tolerance policy on marijuana use, which may lead to immediate termination, said Ondrea Matthews, director of risk management and benefits.

“Part of (management's) responsibility is to make sure that if they think (someone) is intoxicated or impaired ... they are to report that to human resources and have that employee stop working on whatever they're working,” she said.

Even though commercial sales of recreational marijuana won't begin until later this year in Washington state, Gig Harbor, Wash.-based temporary staffing firm West Sound Workforce has seen a threefold increase in job applicants testing positive for marijuana use since Initiative 502 took effect in December 2012. While only about 5% of applicants tested positive for marijuana use historically, close to 15% of applicants test positive today, said Julie Tappero, the firm's president.

“More people are turning up positive as a result of the pre-employment drug test,” Ms. Tappero said. “We're also seeing more candidates who voluntarily talk about their marijuana usage.”

In response, Ms. Tappero said her staffing firm has “altered our policies to say we will continue to test for THC,” or tetrahydrocannabinol, the active ingredient in marijuana. “Even though it's legal on the state level, it's not legal on the federal level,” she said.

Employers outside Colorado and Washington also are reviewing their workplace safety policies that include drug testing in response to changing state marijuana laws.


For example, Charlotte, N.C.-based snack food manufacturer Snyder's-Lance Inc. recently revised its drug and alcohol policy to say marijuana use remains banned for employees, said Angela C. Matherly, senior director of risk management. The company has about 5,000 employees, including salespeople who live in and truck drivers who travel to states that have legalized marijuana sales.

“Just because you can do it doesn't mean you should do it,” Ms. Matherly said of pot use. “So we're taking the stance that if it's legalized for recreational use, we still consider it a prohibited activity.”

Snyder's-Lance employees who have medical marijuana prescriptions are not allowed to come to work while taking such treatments, similar to how Snyder's-Lance deals with workers who are taking narcotic prescriptions, Ms. Matherly said.

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