Even if I-502 passes, pot use could cost your job

Anyone who thinks that approval of a state initiative to legalize marijuana would give them added protection if they test positive in a workplace drug test should think again.

A state Supreme Court ruling last year said that Washington’s existing medical marijuana law doesn’t prevent an employer from firing an employee for a positive drug test.

Backers of Initiative 502, which would legalize purchase, possession and use of an ounce or less of marijuana by anyone 21 years or older, say there’s nothing in this initiative that would protect workers from being fired for marijuana use, even if it’s used off-site.

“The state Supreme Court upheld the right of employers to fire people for using marijuana, even if they are legal marijuana patients under state law,” said Alison Holcomb, a spokeswoman for the group that is backing the marijuana legalization effort.

“You are committing a violation of federal law,” she said. “Until marijuana is legal under federal law, that will always provide employers a valid reason for firing someone.”

Initiative 502 would not change in any way the right of Washington state employers to refuse employment or to fire someone who tests positive for marijuana, Holcomb said.

Many local employers, including The Everett Clinic, have strict rules against being impaired at work, whether it’s from alcohol or drugs.

“Alcohol is legal, but if an employee or physician was under the influence at work, they would face termination,” said April Zepeda, a clinic spokeswoman. “So whether marijuana is legalized or not, it doesn’t change our policy.”

Jennifer Howard, vice president of administrative services at Everett Community College, said that in the nearly five years since she’s had her job, no employee has raised the issue about use of medical marijuana.

The college has a drug-free campus policy, as well as protocols for how to handle any employee who appears to be impaired at work. This includes immediate screenings for drugs or alcohol when accidents occur that threaten safety.

“If it impacts your ability to perform your job, we have to talk to you about job performance and whether it would be safe to be on our campus,” she said.

That won’t change if the initiative passes, Howard said. “The impairment is what we’d be dealing with, not what caused the impairment.”

One difference between alcohol and marijuana is how long the substances are detectable in a person’s system.

In Initiative 502, the cutoff for marijuana impairment is set by the amount of its active ingredient, THC, is in the blood. Typically, THC drops below the legal impairment level in a matter of hours, Holcomb said.

Meanwhile, the inactive metabolite can remain in fat cells and show up in drug tests for days, or perhaps even weeks later in heavy users, she said.

“Right now, employers aren’t distinguishing between the two,” Holcomb said.

“Hopefully, we can have a conversation about impairment versus use,” she said, such as use away from work on a Saturday night, which shouldn’t affect job performance on Monday.

The use of marijuana use for treatment of medical conditions first became legal in Washington following passage of an initiative in 1998. It allows doctors, osteopaths and naturopaths to authorize the use of marijuana for terminal or debilitating conditions, including cancer, glaucoma and severe pain.

Last year’s state Supreme Court ruling on medical marijuana involved a woman with a history of debilitating migraine headaches, including chronic pain, nausea, blurred vision and sensitivity to light. When traditional prescriptions medications did not provide relief, she obtained an authorization for marijuana from a physician.

The woman, who was not identified in the lawsuit, said that she only used marijuana at home.

When she was offered a job as a customer service representative for a Bremerton telemarketing company, she was informed that only employees with a negative drug test would be hired.

The woman offered to provide the company with a copy of the medical authorization she had received to use marijuana.

About a week after she was hired, the company was notified that she had tested positive for marijuana and she was fired.

The Washington court ruling clearly states that there’s nothing in state law that requires accommodation of medical marijuana in places of employment, said Stephen Teller, a Seattle attorney who specializes in workplace litigation.

Yet Teller said he was bothered by some of the facts of the case.

“They knew she was going to use marijuana off site from time to time, then fired her for doing something she said she was going to do,” he said.

“It’s a telemarketing position. It’s not a Homeland Security job, or an airplane pilot … not even a construction job where the possibility of injury is high. It’s sitting at a desk having to pay attention and provide reasonably good customer service.”

The court’s ruling came despite the Legislature’s 2007 amendment to the medical marijuana law. Teller said he feels it was meant to clarify that while no on-the-job use of marijuana was permitted, under the law, off-site use could be required as a disability accommodation.

However, the court ruling found that neither the original law nor the amendment requires employers to accommodate an employee’s use of medical marijuana.

“I think the state Supreme Court got it wrong,” Teller said.

Teller said his advice to any employee asking about medical marijuana use would be: “You only want to do that if you’re in the right job, or if you’re willing to take the risk of losing your job.”

Matt Carvalho is a Seattle attorney who helped write a friend-of-the-court brief in the medical marijuana case, asserting that the employee’s termination violated the rights of patients to use marijuana.

Carvalho said he doesn’t think the state Supreme Court would change its reasoning on the issue, even if voters approve this year’s marijuana legalization initiative.

The court seems to be saying that if the Legislature wants to protect employees using medical marijuana, they would have to take explicit action to do so, he said.

“The thing to remember is it still remains criminalized under federal law,” Carvalho said.

It might seem unfair for an employee who had informed her employer that she used marijuana for a medical condition to be fired for a positive drug test, he said. But the court didn’t base its ruling on that issue.

If this year’s marijuana initiative passes, “employees shouldn’t expect that it would change their rights … even if they’re legally using marijuana,” he said.

Sharon Salyer: 425-339-3486; salyer@heraldnet.com.

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