Pubdate: Mon, 09 Mar 2015
Source: Washington Post (DC)
Copyright: 2015 The Washington Post Company
Authors: Aaron C. Davis and Lydia Depillis


D.C. Business Owners Grapple With Diverse Needs As Laws on Marijuana 
Testing Evolve

 From white-linen restaurants to K Street law firms, D.C. employers 
have found themselves on the front lines of defining marijuana 
legalization in the nation's capital.

If your employee shows up blearyeyed, can you do anything about it? 
And what protections will unions be able to offer?

A survey of D.C. business owners and union leaders in the week since 
the District legalized possession, use and home cultivation of 
marijuana shows these questions have begun to fuel a lively debate in 

Well, at least in most places. Construction firms with fleets of 
heavy machinery and hefty insurance bills have been among the first 
to reiterate their no-drug policies to employees. The FBI has also 
left a handy question-and-answer about marijuana use unchanged on its 
Web site. "Have you used marijuana at all within the last three 
years?" Those who answer yes, the FBI says, need not apply.

And while a D.C. Council committee tried to bring some clarity to the 
issue last week, some employers said it only added to the confusion.

Under an emergency measure now in place, and permanent legislation 
the council will take up later this month, D.C. employers will be 
banned from requiring drug testing of a prospective employee before 
extending a job offer.

But the law won't free employees to light up without consequence. 
Employers will retain the right to screen for drugs after making a 
job offer - and to enforce their own drug policies for anyone on the 
payroll. The law also doesn't interfere with federal employees, who 
remain prohibited from lighting up.

The bill's primary function, said Council member Vincent B. Orange 
(D), who wrote the measure, is to give prospective workers time to 
"clean up" for a job in workplaces that often prohibit what is now a 
legal intoxicant in the city.

"It's a first step," said Orange, who said he believes the measure 
will also help employers. "They want to know that, once on the job, 
employees will be drug-free."

The D.C. Chamber of Commerce said in an e-mail to Orange's office 
that it would not oppose the bill. But Chamber President Harry Wingo 
declined to comment.

"It's complicated . . . and employees getting fired is an unintended 
consequence of marijuana legalization," said Scott Moss, a professor 
who specializes in employment law at the University of Colorado at Boulder.

"Legalization laws didn't anticipate whether employers can fire you 
for using marijuana in a state that has legalized marijuana."

In fact, a handful of court cases now working their way through the 
Colorado court system may shed light on the issue. Moss attended oral 
arguments before the state's supreme court last fall for a case - 
involving a satellite-television company employee fired for marijuana 
use - that could provide a watershed ruling.

As in Colorado, the issue that employment experts said is likely to 
emerge in the District is that while legalized, the city has not said 
that marijuana use is a protected right. No U.S. jurisdiction has 
declared that marijuana falls under anti-discrimination chapters in 
employment law.

And as long as marijuana remains a controlled substance under federal 
law, employers can point to that in disputes with employees, Moss said.

Conflicts have increased in Colorado. Positive drug tests have 
spiked, according to private firms who do much of the testing. And a 
survey last year of businesses in Colorado found that 71 percent of 
employers left their drug policies in place. But legalization 
appeared to have an unintended effect with 21 percent of others. They 
responded by publishing stricter no-drug policies.

Among those with the strictest drug policies in the District are 
employers in the national security arena.

Stewart A. Baker, former general counsel at the National Security 
Agency and a former senior policy adviser at the Department of 
Homeland Security, said he could offer only "informed speculation" 
about how the District's new drug law might intersect with some of 
its most secretive employers.

"The traditional view is that drug use in the past five years is not 
a serious problem; whether it's a problem at all is a serious 
question," Baker said.

"But this is not like sexual preference, where once it's legal and 
accepted it's not a basis for blackmail," he said. "My guess is it 
would be treated as a concern even if it's lawful. Especially in the 
current context, where it's lawful at federal level and unlawful at 
local level."

On the opposite end of the employment spectrum, it's still a "sticky 
situation" there, too, said Nikki Lewis, executive director of DC 
Jobs with Justice, which represents a number of workingclass employees.

"It seems like the low-wage job market is getting more and more 
competitive for hiring - from having to come in a suit to increased 
drug testing in order to be 'qualified' for service, retail, or 
hospitality" jobs, she said.

Employees who partake could be at risk.

That appears to be true for cooks and servers at I Ricchi, an Italian 
restaurant near Dupont Circle.

Christianne Ricchi said she's been thinking about what might happen, 
and certainly doesn't want the D.C. government imposing any further 
rules limiting what she might do.

"I take my responsibility toward my business, toward my current 
employees and toward my customers very seriously," Ricchi said. "If 
the situation arose and I felt it necessary to ask for a marijuana 
test, I would like to know that I have that available."

Khalid Pitts, who with his wife owns Cork Wine Bar on 14th Street 
near Logan Circle, said he feels bound by the ballot measure 
legalizing marijuana and if employees want to partake on their own 
time, that's now their choice.

"Voters have passed rules essentially legalizing it, so in that 
sense, it should be treated just like we would treat alcohol," Pitts 
said. But he's not worried about a confrontation.

"Let's just say, I have seen it around," he said.
- ---
MAP posted-by: Jay Bergstrom