How will legal marijuana be treated in the workplace?

By Anna Canzano, KATU News and Associated Press Published: Dec 7, 2012 at 5:52 PM PDT Last Updated: Dec 7, 2012 at 6:32 PM PDT

VANCOUVER, Wash. – Smoking some pot inside your home in Washington may now be legal, but that doesn’t necessarily mean smoking a joint or two won’t affect your job.

With the landmark change in Washington’s law, we wanted to know how it will affect people at work.

Consider the fact that many employers conduct random drug tests on employees. Public transit agency C-Tran, for example, tests drivers to make sure they’re not using drugs while driving passengers.

The sticky wicket with marijuana is that the chemical THC can stay in your system for up to 30 days after you smoke pot. So what if you decide to legally smoke on the weekend then are subjected to a drug test weeks later at work? Are employees protected simply by the fact that recreational pot use is legal?

We presented that scenario to C-Tran and the agency isn’t offering any wiggle room for its drivers or the rest of its staff.

“We are not making any changes to our drug or alcohol policy in that marijuana, whether it’s used off the job or on the job, is still a prohibited drug,” said C-Tran spokesman Scott Patterson. “That’s the message we’ve communicated to our employees and it’s the policy going forward.”

C-Tran receives federal funding so it must follow federal law, which still considers marijuana to be illegal.

Employment attorney Gregory Ferguson recommends that all employers figure out their drug policy and clearly communicate it with employees.

“The law has changed and recreationally you can go out and have fun, but I think it really hasn’t changed how the issue is going to be handled in the workplace at all,” Ferguson said.

He does anticipate, however, that there will be workers who test the boundaries of the new law with their bosses.

He points out a Washington Supreme Court ruling last year that backed an employer who fired a woman after she disclosed that she was a medical marijuana user.

The court ruled that Washington’s medical marijuana law doesn’t offer employment protection. The way Ferguson reads it neither does the recreational marijuana law.

Police departments are especially worried. Officers take oaths to protect all laws, state and federal. In this case, pot is still prohibited under federal law.

The Seattle police department is reviewing its policies on drug use by officers or prospective officers, spokesman Sgt. Sean Whitcomb said, adding that it's unlikely off-duty officers will be allowed to use pot. The department might ease its requirement that applicants not have used marijuana in the previous three years.

The Denver police department is reviewing Colorado's marijuana law, which goes into effect in January. The department has no immediate plans to change employment practices, spokesman John White said.

"Marijuana is still illegal at the federal level, so officers would not under any scenario be allowed to use marijuana," White said. White wasn't sure about pre-employment marijuana use.

One of Washington's biggest private employers, The Boeing Co., generally requires drug tests before employment, upon reasonable suspicion or after accidents. The Washington measure won't change any of that, said company spokeswoman Cathy Rudolph. "The safety and integrity of our operations, products and services is paramount," she said in an email.

For companies like Boeing without random or regular drug testing, it's not entirely clear how such policies can be enforced.

Some lawyers are encouraging companies to take stock of their drug policies. "This is a good time for employers to revisit their policies and make sure they're still consistent with what they want to do, and to talk with their employees about what the policies are," said Mark Berry, an employment lawyer.

Other employers, especially those with federal contracts, are concerned what the new laws mean for them. One group of Colorado businesses has pleaded for clarity in a letter to the White House, which hasn't said if it would sue to block the law.

"The uncertainly created will cause havoc for our members and hamper their efforts to maintain drug-free worksites," wrote Mark Latimer, head of the Rocky Mountain chapter of Associated Builders and Contractors.