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Reality Check on Marijuana >

With all eyes on an upcoming Colorado Supreme Court hearing, experts weigh in on whether employers will ever really be forced to let cannabis infiltrate their workplaces.

Monday, September 29, 2014
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Proponents and opponents of the nationwide move to legalize < marijuana >, recreationally and/or medically, are keeping close eyes on the case of Coats v. Dish Network, slated to be argued before the Colorado Supreme Court today, Sept. 30.

The case revolves around disabled customer-service representative Brandon Coats, 35, who --  after testing positive for < marijuana > -- told his boss on a Friday that he smoked it primarily at night to relieve spasms he suffered as a result of a car accident that paralyzed him when he was 16. When he showed up for work the following Monday, he said in a recent New York Times article, "my card wouldn't open up the door." In short, he had been fired for violating Dish's drug-free-workplace policy.

If Coats prevails in his argument that his positive drug test should be allowed under Colorado's 2000 law legalizing it for medicinal purposes (Colorado legalized its recreational use last year as well), employers throughout that state -- and even the country -- will have a harder time enforcing drug-free work policies, some legal experts say, including those representing Dish Network., however, say that will never happen as long as < marijuana > remains an illegal substance under federal law.

Despite the growing ranks of states that now allow for medical < marijuana > use (specifically 23, plus the District of Columbia), and despite some states expressing interest in joining Colorado and Washington to allow for it recreationally (The Kiplinger Letter projects Alaska and Oregon will pass such laws this year, followed by Arizona, California, Massachusetts, Montana and Nevada by 2016), most employers are still following federal law.

"I know of no employer that has changed its policies because of these state laws," says Mark A. de Bernardo, executive director of the Institute for a Drug-Free Workplace and a Reston, Va.-based senior partner at Jackson Lewis.

In terms of medical < marijuana >, he adds, "every single case that has been heard since we've had these laws on the books has been decided in favor of the employer" and its federally-backed drug-free policy and position.

Certainly, no federal contractor would - or should - even consider jumping on the < marijuana >-legalization bandwagon while the substance is illegal by federal standards, de Bernardo and others say. Obviously, the risk there could involve their federal funding. And all employers' drug-free-workplace policies remain backed by federal law, of course.

"This is not a crisis for employers," says de Bernardo. "Their backs are not up against the wall. As I tell my clients, 'Do what Dish Network did; stay the course.' "

Where the Coats case and the growing national momentum could have an impact, employment attorneys say, is in the degree to which employers might be pressured to jump on the cannabis-legalization bandwagon - or at least run beside it at a good clip - to reassure the growing ranks of "using" people that they're keeping up with the times.

Employees and job candidates are watching employers for their social and cultural values and leadership like never before, they say, so deciding to stand firm against the growing legalization tide could be something more employers are at least thinking twice about.

Indeed, it is very safe to say the popularity of < marijuana > is growing far faster than the plants themselves. In the two states where recreational use is now allowed by law, cannabis dispensaries are sprouting up everywhere. In King County, where Seattle is located, there are now 61 < marijuana > dispensaries, says Stan Wagner, chief executive officer of Cannabusiness Accelerator, based in Denver.

In fact, this past Friday, Sept. 19, Cannabusiness Accelerator held a job fair in Seattle's Capitol Hill neighborhood, "with the support of the [fast-growing < marijuana >] industry's leaders to serve as a locus of networking and informational know-how [for job seekers], as well as a showcase for program partners, "all suppliers to the new industry," according to the company's release about the event.

As for the types of employees slated to do well in the industry, "we want people who really take this seriously," says Wagner. For instance, a "budtender" - much like today's bartender - "truly needs to be the face of the company, advocating and helping people make educated decisions about which [cannabis] strains will affect them or help them in different ways."

"It's not just about selling pot," he says, "but about some higher thinking around the organization and its values."

For the most part, and for now, those interested in becoming budtenders and/or pot consultants are primarily millennials (between the ages of 21 and 32), so Wagner's business is working with the new cannabis companies to help them establish policies and communications that will work best with that demographic.

"This industry is so new, you're developing a whole slew of new rules and regulations," he says, "like what they're accountable for, what their job descriptions are and what the values of this industry are."

Not only is the burgeoning < marijuana > industry working against and weighing on some organizations, so is the growing use of cannabis among employees, whether their employers are trumpeting their zero-tolerance drug policies or not.

Madison, N.J.-based Quest Diagnostics' Drug Testing Index, released Sept. 11, shows that, for the first time in more than a decade, the percentage of positive drug tests among American workers increased. According to Quest's report, positive tests went to 3.7 percent in 2013 from 3.5 percent in 2012, based primarily on the rise in positive tests for < marijuana > and amphetamines.

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"More people are definitely using < marijuana > on the job and on breaks on the job," says de Bernardo. "That has its compromises, whether there's a law or not, in terms of absenteeism, motivation, innovation ... .

"Think about it," he says, "all the forces that make a business strong" are compromised by stoned employees, whether they're smoking on the premises or still under the influence when they enter their offices in the morning. An increasing number of drug-using high-school and college students --  especially in Washington and Colorado, according to latest reports --  who will soon be entering the workforce is a whole other very concerning story, he adds.

"What our country doesn't need are more stoned workers," says de Bernardo.

It's for this very reason that he and other employment attorneys are advising their clients, emphatically, to hold fast to their zero-tolerance policies and, in fact, raise the volume button on the bullhorn while they're at it.

"Employers have a tremendous, vested interest in making it clear to employees that < marijuana > is against the law" and against work policy, says Philip Voluck, managing partner of the Pennsylvania office at Kaufman Dolowich & Voluck, based in Blue Bell, Pa. "All 50 states could decriminalize < marijuana >, and it still does not change federal law."

Unfortunately, says Voluck, far too many employers are confused by the state statutes they're hearing about. "They must not be reading them," he says. "If they were, there wouldn't be any confusion. I field questions all the time in those states where it's legal [medically or recreationally]. Employers are asking, 'Does this mean I have to let my employees use < marijuana > at the workplace?' "

On the contrary, he tells them to " 'get out in front of all this' " by revising their employee handbooks to make them that much clearer that, " 'despite local law, it's still against federal law and we're going to enforce it.' "

< Marijuana > use at work is also still disallowed under the Occupational Safety and Health Act, which mandates safe and effective workplaces (< marijuana > has been proven to cause impairment), nor has the Americans with Disabilities Act been changed to allow for medical < marijuana > to date, says Voluck.

"You have to make all this clear and you have to determine, for your business, what your definition of impairment is; how many hours the drug has been in the system" to fail your test, he says.

"It would just be pure ignorance," Voluck adds, "for an employer to think it needs to jump on this [legalized-< marijuana] bandwagon."

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