Pubdate: Sat, 12 Apr 2014
Source: Rochester Democrat and Chronicle (NY)
Copyright: 2014 Rochester Democrat and Chronicle
Author: Trevor Hughes, USA Today


DENVER - Last month, Colorado diner owner Mark Rose posted an unusual 
job description: "Looking for part time experienced breakfast cook. 
Pays well, must be friendly and a team player, could turn into a full 
time gig by summer. 420 friendly a must."

With that public declaration, Rose put himself squarely in the camp 
of employers acknowledging that marijuana use is perfectly legal in 
Colorado. Perhaps more significant, it also puts him in the camp of 
employers who officially don't care if their employees use pot 
off-duty. The phrase "420" is shorthand for someone who uses marijuana.

Rose owns Dot's Diner on the Mountain in the pot-friendly mountain 
town of Nederland, Colo., just west of Boulder. He says he wanted to 
hire a marijuana-friendly employee to ensure he didn't have to deal 
with someone who might complain about his own pot use.

Legalized marijuana in Colorado and Washington state is sparking new 
conflicts between employers trying to maintain drug-free workplaces 
and workers who say they're being punished for their off-duty 
indulgences. Nearly half the states now legalize some sort of 
marijuana use, either for medical purposes or purely for fun.

"I imagine there will be a great deal of upheaval in the future," 
says Curtis Graves, a staff attorney with the Mountain States 
Employers Council, which advises companies on workplace issues. He 
added, "The law is going to be in flux for another 10 years."

Twenty states now permit the use of marijuana for medical reasons, 
but employers in those states are under no legal obligation to allow 
any kind of pot use in the workplace. Colorado has a law that says 
workers cannot be fired for legal activities while off duty, but the 
state's courts also have said marijuana use isn't lawful because the 
federal government still considers it an illegal drug.

The result: More employers are testing prospective workers before 
hiring and continuing random drug tests, says Tiffany Baker, co-owner 
of the Denver DNA and Drug Center, which provides drug-testing 
services to employers.

"I think big companies were already testing anyway," she says. "I 
think small companies are ... now more likely to send their workers over."

"Employers have total power in this arena," Graves says. "At this 
point, the employer can do anything they want to do."

In Washington state, which is still developing its retail marijuana 
system, there's been little change, says Jenifer Lambert, a vice 
president of the employment agency Terra Staffing Group, which places 
about 5,000 workers a year. She says manufacturers and companies that 
work in federally regulated areas such as interstate commerce and 
aerospace continue to test job applicants for drug use. Only one of 
about 500 companies that Terra works with has relaxed its rules.

Lambert says she expects to see increasing conflicts as marijuana 
becomes more socially acceptable. She says it's ironic because 
workers rarely complain about a smoke-free workplace that bans cigarette use.

At the same time, she says, some prospective workers are essentially 
smoking themselves into a corner by using legal marijuana. She says 
the company doesn't track how many prospective employees are failing 
drug tests but says there's an increase of people admitting they won't pass.

"It's sort of a Wild West scenario. It's very, very tricky," Lambert 
says. "I feel badly when someone comes to us and doesn't understand 
the implication of their pot smoking."

Office manager Dawn Owens, 47, knows all too well what would happen 
if she got caught using marijuana to ease her migraines. Instead, she 
takes prescription drugs because those are allowed, even though she 
feels far less able to work effectively.

"It would literally take two to three puffs off a joint and my 
headache would be gone within one to two minutes," Owens says. "But 
instead, I'll be taking a Vicodin, which will render me useless for 
much of the day," she says.

She says it's hypocritical of employers to permit prescription drug 
use and to tolerate or even encourage after-work drinking but bar 
workers from using legal marijuana. "You can hire a raging alcoholic 
that can pass a test because they haven't had a drink in 24 hours and 
you can hire someone who abuses prescription drugs because they were 
able to get a prescription for it, but if someone smokes a joint on a 
weekend they can't get a job because they can't pass the drug test," she says.

Employers increasingly will have to ask themselves whether they need 
to shift from testing solely for the presence of marijuana to a test 
that checks for impairment, says Leslie Miller, deputy counsel for 
the Manufacturers Alliance for Productivity and Innovation. He says 
manufacturers are cautious about making any changes that could reduce 
worker safety. But they also must acknowledge that workers who use 
marijuana on their own time - on vacation, for instance - aren't 
breaking any laws, he says.

"What happens if those employees go skiing (in) Aspen or fishing in 
Washington?" he asked. "Up until now, I think the concern was that 
marijuana was an illegal activity."

Attorney Rachel Gillette, director of the Colorado chapter of the 
National Organization to Reform Marijuana Laws, says employer 
attitudes haven't caught up with the public at large. She says 
there's no test that can check whether someone is actually impaired, 
a problem because marijuana often remains in the body for weeks. In 
contrast, an employer can use a breath test to see whether a worker 
has been drinking on the job.

"It's a remnant of failed drug-war policy that needs to be looked at 
again," Gillette says. "It's time for employers to re-think their 
random drug-screening policies."

Gillette says business owners need to calculate the costs of 
replacing employees fired from drug-free workplaces. She says 
otherwise good workers who use pot on their own time shouldn't be 
punished, especially when employees who drink or abuse prescription 
drugs don't face the same penalty.

"It's probably not effective to be excluding a large part of the 
workforce from jobs just because they have used a legal substance in 
the past 30-60 days," she says.

At Denver International Airport, workers are randomly drug-tested to 
help ensure safety, said spokesman Heath Montgomery: "Working around 
aircraft, and on an active airfield, requires focus and clear 
thinking in order to maintain the safety of the traveling public, as 
well as employees." DIA workers who test positive for drugs of any 
kind aren't automatically fired, but a positive test result launches 
a conversation between employee and employer, Montgomery said.

Owens, the office manager, says her husband uses medical marijuana 
but struggles to find work because so many employers drug test before 
hiring. Knowing that he'll test positive, he doesn't bother to apply, she says.

A pending Colorado Supreme Court case between a paralyzed man and his 
former employer could set a precedent across the country, Graves 
says. In that case, DISH Network fired former telephone support 
operator Brandon Coats in 2010 after he tested positive for 
marijuana. Coats sued the company, arguing that his use of medical 
marijuana on his own time and in his own home had no bearing on his 
work. The Colorado Court of Appeals ruled against Coats, deciding 
that DISH had the right to enforce its drug-free policy. Coats has 
appealed the decision, with a ruling likely to come later this summer.

Graves says the uncertainty will persist as employers and workers 
balance safety and personal freedoms and until scientists develop an 
on-the-spot test that can measure marijuana impairment. Today's tests 
can take three to five days to process.

In Nederland, diner owner Rose says it's about time America had an 
honest conversation about how many people have been using marijuana. 
Having worked in multiple offices, medical clinics and professional 
settings, he says it's a mistake to think people haven't been using 
marijuana safely for decades.

He said none of his pot-using employees cause any problems, but he 
had to fire a worker who repeatedly came to work drunk or severely hung over.

"The dominoes are falling, and they are falling faster than anyone 
expected," he says. "Guess what? The sky isn't falling."
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MAP posted-by: Jay Bergstrom