FEELING THE EFFECTS IN A ZERO-TOLERANCE INDUSTRY
BY KATIE KUEHNER-HEBERT
Using marijuana – whether for medical or recreational reasons – is becoming legal in more and more states, causing contractors to double-down on their zero-tolerance worksite policies.
Nearly half of the states in the country now either allow for the medical and/or recreational use of marijuana, after voters in Or-egon, Alaska and Washington, D.C. approved ballot measures in November’s midterm elections.
Problem is, the issue whether employers can discipline or outright fire an employee for testing positive for marijuana use can be tricky, particularly if the person used the drug days before on their off-time, making the proof of actual “impairment” on the job murkier. Moreover, contractors, especially those working in multiple states, have to contend with a myriad of other federal and even some local restrictions on testing and disability discrimination, and the question of which rules supersede others is still up in the air.
Still, most contractors are sticking by their zero-tolerance policies as they wait for the issues to flesh out in court.
Michael Gifford, president and chief operating officer, AGC of Colorado Building Chapter, says that the trade group participated in the rule-setting process of Colorado’s new law to permit recreational use, making sure zero-tolerance policies would be a state constitutional right that supersedes the statutory right to use marijuana.
The issue is currently being tested in a court case, Coats v. Dish Network, in which Brandon Coats is suing his former employer for firing him for having used medical marijuana off duty. Coats is suing under the state’s “Lawful Activities” statute, which restrict employers from taking adverse action against employees for engaging in lawful activity off-premises and off-duty.
“But we believe the Colorado Supreme Court will rule in favor of Dish because the company has a state constitutional right to have a zero-tolerance policy,” Gifford says.
Moreover, the Colorado Court of Appeals ruled in that case that employees are only protected for conduct that’s legal under both state and federal law, and marijuana use remains illegal under federal law, says Denise Gold, AGC’s associate general counsel in Washington, D.C. The Colorado Supreme Court is expected to rule soon.
Fortunately for employers, one aspect that is consistent across state laws is that no state requires employers to permit mariju-ana possession or use in the workplace or to tolerate employees who report to work under the influence, Gold says.
“But even this is tricky, because a positive test for marijuana doesn’t necessarily mean the employee is impaired,” she says. “Unlike alcohol, marijuana stays in the system a long time – potentially days, as compared to hours with alcohol. Because legal-ized marijuana is still relatively new, the case law is still developing, and it’s not yet completely clear what employers may and may not do in response to a positive test for off-duty, off-premises marijuana use.”
So far, all of the state high courts that have addressed the issue – in California, Montana, Oregon and Washington – have held that employers have no duty to accommodate state-authorized marijuana use, primarily because the use is unlawful under federal law, Gold says. But there are at least seven states – including Arizona, Connecticut, Delaware, Illinois, Maine, Nevada and Rhode Island – with laws that expressly protect applicants and employees from job-related penalties for testing positive for medical mari-juana, and the high courts in those states have not yet fully addressed the issue.
“At this point, whether an employer may impose a zero-tolerance policy in those states is uncertain,” she says.
State and local drug testing laws also widely differ in dictating how and when employers may conduct testing, Gold says. For example, in Utah, if employers choose to test job applicants, they must periodically test managers too. Also, some states allow rapid screen tests, while other states require employers to use certified laboratories.
Michael Salsgiver, executive director, Oregon-Columbia Chapter, says contractors in Oregon also have a constitutional right to have a zero-tolerance policy. But even so, the issue still creates more opportunity for litigation.
“Most of our chapter’s members are small employers, and lawsuits can significantly impact a company in terms of time, money and reputation,” Salsgiver says.
Aside from the debate over legalization at the state level, current federal law makes marijuana use illegal, he says. Like many AGC chapters, the Oregon-Columbia Chapter has members operating in multiple states with different laws, and a primary benefit of having a federal statute “is to get around this issue.”
“But now the federal government won’t even enforce its own law which is basically a de facto legalization,” Salsgiver says. “The picture is just a mess.”
The main concern, of course, is safety – not just for employees, but also for the public, he says. “If someone smoked marijuana on the weekend but came to work on Monday still impaired, would you want them to operate a crane above a public street?”
John MacKinnon, executive director, AGC of Alaska, says now that Alaskan voters passed a ballot measure to legalize recrea-tional use of marijuana, his members “will continue to have high standards for pre-employment and employment.” Many employers use the traditional urinalysis test as a pre-employment requirement as well as a random test. Some employers have gone to a pre-employment hair follicle test.
“We have zero tolerance for substance use and abuse,” MacKinnon says. “We drug test – you fail the test, you lose your job.
Vince Campanella, vice president of operations at Lydig Construction in Spokane Valley, Washington, an AGC of Washington and Inland Northwest Chapter AGC member, says most contractors – with support of the trades – have pre-employment drug testing. His firm doesn’t have random testing in eastern Washington but it does conduct pre-employment and post-accident test-ing, and in cases where the firm suspects a worker is impaired. In western Washington, the industry has an agreement to allow random testing.
Even with that state’s legalization of recreational marijuana use, Lydig has not had “any issues at all,” Campanella says.
“Workers just understand that this is their livelihoods, their careers are at stake, and there really is a high level of cooperation to make sure safety on the jobsite is everyone’s responsibility,” he says.
If contractors currently have a drug testing policy, they need to communicate that policy again to their employees, and have them sign an acknowledgement that they have read the policy, says David D’Hondt, executive vice president, AGC of Washington. Specifically, contractors need to get a reaffirmation that the employees understand that nothing has changed with the company’s testing policy – medical or recreational use may still jeopardize an employee’s ability to be employed.
For members of the Colorado Contractors Association, “not much has changed,” since all commercial drivers and many equip-ment operators are regulated by the U.S. Department of Transportation, which has a strict zero-tolerance policy for drugs – mean-ing workers are fired if they test positive, says Tony Milo, executive director.
“But the sad thing is that we have a great labor shortage here in Colorado, so the people who choose to use recreational marijuana are sabotaging themselves from the possibility of a good career in the construction industry,” Milo says.
Florida’s ballot measure for medical marijuana use did not pass, “but it was close,” says Howard Wander, principal partner/chief operating officer, Kelley Kronenberg LLP, in West Palm Beach, Florida, a South Florida Chapter-AGC member. The measure needed a supermajority of 60 percent to pass, but received just under 58 percent.
“This shows there is overwhelming support, and the Republican-controlled state Legislature will have to seriously respond.
“I know for a fact this coming session there will be many bills presented to the Legislature for hearings and it will be up to them to listen and act upon the needs of Floridians,” Wander says. “If not, supporters will be back in 2016 for the presidential election and push for another constitutional amendment, which again requires a supermajority to win.”
But even now, employers in Florida need to understand that just because the ballot measure did not pass, they will still need to make critical decisions regarding medical marijuana use, when the state’s “Compassionate Medical Cannabis Act of 2014,” (a result of the passage of Senate Bill 1030) is rolled out in the coming months, he says. Once the low THC cannabis oil is available to patients in Florida, employers will be faced with the same concerns they had if the November ballot measure had passed.
“But there is a train coming and it is important for employers to get on it or get out of the way for it,” Wander says. “Just because the full legalization of medical marijuana did not pass this time, doesn’t mean they can let their guard down, especially since they need to be prepared for the rollout of SB 1030. But it’s probably a blessing in disguise, and now employers have more time to prepare accordingly.”