Drug-Free Workplace: Wreathed in Smoke in Washington

Blog-Image-Marijuana Since the good people of Washington state voted to legalize recreational use of Marijuana, beginning at the end of 2012, employers in the Evergreen State have been dazed and confused about their rights. Unsure about whether or not they can rightfully prohibit the use of pot by their employees, or if they must allow them to indulge on their own time, employers are left in a haze.

Recently, a client came to us second-guessing actions they’d taken when they retracted a job offer from a candidate who failed a pre-employment drug screen. The employer has had a drug-free workplace policy and procedure in place for many years. They had extended an offer of employment to a job candidate, contingent on the applicant successfully passing a pre-employment drug screen. The applicant subsequently failed the drug test – testing positive for THC, the active ingredient in marijuana. As a result of the failed test, the employer rescinded their offer of employment, at which time the applicant provided a “green card” documenting a legal prescription for medicinal marijuana from the state he had been residing in. To add to the employer’s concern, the candidate informed the company the he had already (prematurely) relocated his family from out of state to Washington, ostensibly to begin his new job with this employer.

That’s when the bud of doubt crept in…What might the company’s exposure be, as it related to their decision to withdraw the job offer for the failed drug test? Their actions were consistent with those they’d taken before with applicants who failed pre-employment drug tests, consistent with the requirements of their long-standing Drug-Free Workplace Policy – a policy that included marijuana as a banned substance. But,

“Does a legal prescription for pot override that? What about the fact that possession and consumption for recreational use is now legal? Does that change things?”

Some employers have taken many deep breaths and burned the midnight oil wrestling with these questions and their answers. Employees and weed is still a relatively green and an emerging stem of employment law. There’s little in the way of legal precedent or court cases from which to draw conclusions, so it’s important to stay abreast of new developments that may shed light on things – developments that are sure to come. In the meantime, the following paraphernalia may help those employers, who want to ban pot use by their employees and free their minds to enjoy their own sweet Jamaican pipe dreams – at least until the smoke clears…

  • Like alcohol, Washington state law does not require employers to permit drug use in the workplace, under any circumstances, or to tolerate employees reporting to work impaired or under the influence.
  • Currently, the Americans with Disabilities Act (ADA) does not require employers to allow marijuana use as a reasonable accommodation for someone with a disability, even if that person is a registered medical marijuana patient.
  • Federal law still classifies marijuana as a Schedule I drug, meaning there is currently no legal use – medically or otherwise – under the Controlled Substances Act (21 U.S.C. § 812(b)(1))
  • The new Washington state law (Initiative-502) included no specific protection to employees who use marijuana after-hours, and certainly not in the workplace or during working hours.
  • Employers may institute drug-free-workplace policies and the courts have supported employers’ efforts to maintain a drug-free workplace.
  • Employers can still choose to test employees for marijuana and enforce a drug-free workplace. However, it’s important that your company’s Drug-Free Workplace Policy and drug testing procedures are current and up-to-date. Confirm that your policies are as clear as possible and that they crystalize the company’s stance on marijuana use, rather than simply addressing “illegal drugs” or “drugs that are illegal to obtain.” Make sure you have communicated your policy to all employees and have clearly stated what is expected of them.
  • Consistently follow your stated policies and procedures.
  • Reiterate and remind your employees and job applicants that marijuana remains a banned substance at your workplace and consumption of it is a violation of the company’s policy. This communication can help clear up any confusion employees may have after the passage of Initiative-502.
  • Legal recreational and medical use of marijuana does not give employment protections to employees who fail employer drug tests. Additionally, drug testing that is focused on “any detectable level” of THC currently remains enforceable for pre-employment, reasonable suspicion, and/or post-accident conditions.
  • Even though recreational use of marijuana is now legal in Washington state and makes enforcing your company’s Drug-Free Workplace Policy more contentious than ever, when it comes to private and personal after-hours use, so far the courts in Washington state have ruled in favor of employers. One of the few court cases on the matter occurred in 2011 in Bremerton, WA. The case addressed legal use of medical marijuana. The Washington State Supreme Court ruled that an employer can fire a worker who uses physician-authorized medical marijuana, even when the worker uses it only at home and exhibits no impairment at work. Because Washington state’s medical marijuana law did not spell out any provisions regarding workplace use, the Supreme Court found it allowed no recourse in employment disputes (Jane Roe v. TeleTech Customer Care Management, LLC).
  • The 9th U.S. Circuit Court of Appeals (which governs Washington state) has held that “the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.”

It’s not going to get any easier for employers to deal with marijuana use by employees (or prospective employees) anytime soon. According to the federal government, there are no acceptable or legal uses of marijuana nor does it appear there will be anytime soon. Therefore, employers should expect conflict between the federal laws and state laws on marijuana in the workplace to continue. Companies should anticipate more employment practices liability claims and lawsuits brought against them by employees who were terminated, denied employment, or disciplined for marijuana use in violation of their company’s anti-drug policies.

Employers should be prepared to answer questions from employees and job applicants about policies related to marijuana and other drug use (including alcohol).

Businesses that have federal government contracts are regulated by Department of Transportation (D.O.T.) guidelines and must comply with drug testing requirements, which includes the prohibition of marijuana use. That makes it an easy policy decision: “Zero-Tolerance.”

Next, if the job in question is “safety-sensitive” (as defined by the employer), such as a heavy equipment operator, then there’s likely to be a legitimate basis for refusing to hire or for taking adverse employment action against someone for pot use. Safety considerations should be analyzed with reference to an identifiable threat of harm or danger to persons or property. This is the type of analysis where it is always advisable for employers to consult legal counsel.

In situations where safety is not the justification, companies need to determine if there are any circumstances in which someone who tests positive for marijuana use would not be subjected to the ramifications of failing the anti-drug policy. An example may be in the case of the “green card” or medicinal marijuana user. That, too, is a policy decision that should be considered with the assistance of legal counsel.

Medical marijuana is legal in about half of the states, including Washington. Many of those states have laws prohibiting companies from discriminating against employees who legally use medical marijuana, including registered patients who test positive for the drug, but Washington state is not one of them…yet. None of the protections apply to employees who are impaired in or at the workplace or during working hours.

The ADA is a federal law and at its core is the obligation for employers to engage with the employee or applicant in the “interactive process” for the purpose of identifying whether or not a “reasonable accommodation” exists that would enable the otherwise qualified individual to perform the essential functions of a job. However, there is specific language in the ADA that excludes users of illegal drugs and specifically exempts current illegal drug users from being considered “qualified individuals.” As of the date of this post, no decisions by the courts were available to clarify which interpretation of the ADA will prevail.

Under Washington state’s Medical Marijuana Act (RCW 69.51A), use of marijuana, if prescribed by a physician for a medical condition, is allowed. However, the federal Controlled Substances Act prohibits the possession of marijuana. Therefore, because possession is illegal under federal law, it may be considered unreasonable to require an employer to provide a reasonable accommodation under the ADA that is in violation of another federal law.

If and when this position on the federal front changes, a prudent employer would be best served to evaluate each situation involving medical marijuana on a case-by-case basis, just as it should do now for every other case where there is a disability or perceived disability and/or a request for a reasonable accommodation. In any case, a company most certainly should consult experienced employment legal counsel before implementing any policies, or taking any action against an employee or job applicant, that encroaches on the subject of medical marijuana.

True zero-tolerance policies by employers will become more and more scrutinized as we move forward. Companies will need to articulate whether they wish to ban all employee drug use or merely impairment in the workplace. Employers will continue to hear the argument that the presence of THC in the body does not necessarily indicate that someone is presently impaired. While an employee may only feel the effects of marijuana for a matter of hours, THC can be detected for several days—or even weeks—if the employee is a chronic user.

For employers that choose to continue to have a “zero-tolerance” policy for marijuana use, they should be prepared to answer additional questions, such as, “How will they handle recreational use of marijuana by employees and job applicants that are permitted by law?” The shift is likely to be toward banning impairment on-the-job rather than banning any personal usage under a “zero-tolerance” policy – similar to another legal drug – alcohol. The new issue is becoming, “What will be the threshold for determining impairment of someone under the influence of marijuana?” That leads to the question of, “What will be the legally accepted methods of testing for impairment by cannabis?”

In spite of all the legalization, employers are still within their rights to enforce their drug and alcohol policies as they always have. Employees and job applicants who think the State’s legalization of recreational (or medicinal) use of marijuana gives them a green light to consume on their own time, without fear of losing their jobs, may be setting themselves up for a major downer. If marijuana use is prohibited as a condition of employment, employees can be terminated and applicants can be denied employment for violating this condition.

So, while the fragrance of Afghanistan may reward a long day’s toil, inhaling it can still lead to unemployment because their job may be Up in Smoke!


I am not an attorney, nor do I play one on TV, and I don’t profess to be one. So, please read and take note of the following:

DISCLAIMER: The comments and materials contained herein are solely the opinion of the author and are only intended to be thought-provoking and for informational purposes. The comments and materials are not be construed as legal advice. Before acting on the basis of any of this information or material, you are strongly advised to consult your employment attorney for legal advice. Neither the author nor his employer or anyone else he represents accepts any liability for any damages or other liability arising out of this communication or the reliance upon any of the information provided herein.

An Ounce of Prevention Can Protect Your Identity

[Identity Protection]

Your personal information is important to you. Or is it? It should be and you should want to protect it. But what exactly should you want to protect and what are you protecting it from? And how do you protect it? Do you really need to worry about it? And if so, can’t you just pay a service to do it for you?

Lots of questions and even more answers.  Like noses, everybody’s got an answer…or at least an opinion…and, yes, they all smell!  But some smell better than others.  Get a whiff of these tips…

[Read More…]

Don’t Take the Bait! Avoid “Phishing” Lures to Protect Your Identity


So my wife asked me the other day, “Why are we getting this?” She was referring to an email we received that said, “Your Federal Tax Payment ID: 9387589 is failed.” I could see she was a little concerned and wanted to resolve it right away. And that’s exactly what they want. That’s how they get ya! Get an unsuspecting but otherwise conscientious person, who has their stuff together, to respond quickly without questioning or verifying things. They just want to address it and get it resolved. Normally that’s a good thing. [Read More…]

Are You Raising a Cyberbully?


Cyberbullies Can Strike Anywhere
There’s Digital Media
Image courtesy of Grant Cochrane/FreeDigitalPhotos.net

If you have a preadolescent, moody, hormonal kid, also known as a teenager, pre-teen, or “tween”, you should be aware of cyberbullying. In our digital, mobile, and social world, cyberbullying is a very real issue and a concern for parents.  Cyberbullying is much more than just a modern version of the good-old-fashioned schoolyard bullying.  In general, “cyberbullying” is the term used to describe online activities between minors that can range anywhere from text messages of a teasing nature, to digital harassment, and even threats of physical harm.  Usually it’s deliberate and repeated behavior with the intent of causing physical, psychological, or emotional harm to the victim by way of computers and cell phones. [Read More…]

Cell Phones for Teens: Smart or Dumb?

Cell Phones for Teens:  Smart or Dumb?

As parents, my wife and I recently hit a milestone. Our oldest child became a teenager last month. As we all know, your world changes when you hit “Teendom”! But as the world changes, so does the list of “Things That Change When You Become a Teenager.” One item that wasn’t on our lists when we went through this rite of passage was getting our first cell phone. A what phone? I know, right?…[Read More…]

Seattle Fans Savor Their SuperSonics Memories

We basketball fans in the Pacific Northwest are bursting at the seams with newfound giddiness over the prospect of seeing a new arena built in SODO, which brings with it the promise of professional basketball returning to Seattle.  A cool little side-effect to the “Bring Back Our Sonics” (BBOS) movement is how we’ve become re-acquainted with our Seattle SuperSonics past, reviving our fond memories and love of our basketball team.

Though it’s nearly impossible to fathom a silver lining could exist in the dark cloud of the Sonics departure, for me it would have to be the way this campaign has enabled us to truly remember all of the good, to relive and relish the 41 seasons we lived and breathed Sonics basketball.  It’s made me realize that our basketball team really was a true gem, of the Emerald City variety, even if the NBA had taken some of the luster off it during the last few seasons the team was here.

Since the team left, it’s as if our Sonics fandom has been frozen in time.  There hasn’t been anything new to get excited about, nothing to look forward to on the pro basketball front.  Because there aren’t any flashy new players in town for us to be smitten with, the statures of those who were here are intensified.  Our Sonics history, our memories, they stopped accruing after 2008.  We don’t have any new stars here, like a Kevin Durant, someone to fawn over, to idolize, to pin our playoff hopes on, or someone to give us NBA title dreams.  Because of that, we’re left to dance with who “brung” us.  So we fondly remember our favorite Sonics players of yore.  We pay homage to them.  We celebrate them even more than we maybe otherwise would have.  They’re it.  They’re all we’ve got.  Those are the guys who created our Sonics basketball history.  And we love to rattle off their names as we reminisce with friends, especially  when trying to recall some of the more obscure players who wore the green and yellow (and sometimes burnt orange) over those 41 years.


From the icons’ perspective, imagine how cool it must be for Gary Payton, Shawn Kemp, Slick Watts, and Detlef Schrempf to be feelin’ the love from Sonics Nation and celebrated in larger-than-life fashion as they are right now.  Not that they weren’t already beloved, but now it’s over the top, “Sonic Boom” style!  I’ve gotta believe that the cause is amplifying it – and it’s all good!

So, now we’re merely months away, maybe just weeks away, from knowing whether our pro basketball memories in Seattle will remain indefinitely frozen in time, or they’ll be coming off “pause” soon.  Either way, until we get the new incarnation of the SuperSonics, there will be no new basketball players to warrant our attention, let alone our affections.  So, in the meantime, we remain fixated on the ones who served us, the ones we do know and love.  Cherishing our Sonics memories, with the men who made them, gets us all lathered up and propels us to take action to demonstrate our support to the city and county council members, the elected officials whose approval is necessary to pave the way for the next generation of Supes.  In the meantime, the Glove, the Reign Man, Slick, Det, and some of the others get to keep holding court, just like back in their heyday, maybe even more so.

It’s often said we don’t realize what we have ‘til it’s gone.  Well, after the initial shock, hurt, denial, and anger had subsided, BBOS helped me, and I’m sure many other Sonics fans, to realize that the absence of our team has indeed made the heart grow fonder.  And just maybe, the silver lining to the (“Thunder”) cloud is, the fans get unprecedented access to our Sonics heroes, while those legends get a little extra time in the SuperSonics spotlight.



Learning to Live & Love Social Media

I’m almost ashamed to admit it.  Especially since for so long, I resisted having anything to do with social media.  I didn’t get it. I didn’t want to get it. After all, like everyone else, I’m busy with life. The last thing I needed was another “time suck”, especially one in the form of something I’d lived without my entire life…thank you very much!  Besides, I wasn’t even slightly interested in Facebook; I really don’t care who woke up with the giggles or what they ate for breakfast.  And I really didn’t understand the appeal of Twitter. Besides, what can you say in 140 characters or less, except to tell the world what you had for breakfast?  Furthermore, I sure as heck wasn’t about to “check in” and tell the world where I am at any given time. Like I’d think you’d care anyway!

Well…as I sit here writing this blog post, it’s pretty obvious I’ve taken the social media plunge. And I did it long before my lovely wife did. In fact, she still hasn’t even dipped so much as a toe in them thar waters.  It doesn’t look like she ever will. She’s a gawl darn holdout with no interest in having people all up in her business, while I admittedly continue to drink the social media Kool-Aid.  She’s perfectly content to get her “social” fix vicariously through me via Facebook posts I occasionally share with her.

But I’m not ashamed that I joined in the social games.  I’m not even sorry for that matter.  Social media platforms are where you’ll find more and more of the people these days.  So, if you want to play, be it socially or professionally, that’s where you need to be.

How did I get started, immersed even, in the social media world? It was pretty easy, actually. Once I realized it’s called “social” media for a reason, I started to get into a groove with it.  You’ll really only get out of social media what you put into it. That is, you need to make an effort to engage people, which requires putting yourself out there a bit, and on a fairly regular basis.  It takes some effort if you want to grow the number of people with whom you interact. My first step was to create a Twitter account. I thought of a semi-anonymous Twitter handle (@JohnnyBehave), which represents me and my true interests, even passions. These include things I am familiar with or that I arguably possess a certain degree of expertise in. My Twitter activity (Tweeting) started slowly but, with a little increased effort, gained some momentum. I’ve been able to slowly build a small following that continues to grow. But it wasn’t until I started following real people, not just celebrities and businesses, and started tweeting and responding to them, that things started happening.

Once the seal was broken with my first social media program, I began my dalliance into the world of Facebook. I must say, I’ve really enjoyed being able to quickly and easily catch up with old friends, classmates, and acquaintances, mostly from high school and college.  Then before I knew it, I was checking in on Foursquare (somewhat anonymously as Johnny Behave) and Yelp!  Yeah!  Check it out. I’m even blogging on Posterous for crying out loud!

Perhaps most importantly, I’m seeing the relevance and power of social media to businesses, marketers, and the world as a whole. As I’ve adopted it, I continue to enjoy learning the world of social media.  One might even say I’ve developed a passion for it!

But with all of social media’s good comes the bad and the ugly.  For me, that includes the inconsistent and often conflicting protocols applied to Social Mediaville.  The things people do and the ways in which they do them in the land of social media are as varied as the people themselves. Those various shades of gray provide more than ample fodder for several future discussions dedicated to rants, raves, and pet peeves about people’s online social media practices. Those are posts for another day…

For now, I’m “All In” when it comes to social media.  I’m not only living with it, I’m loving it!

But I still don’t care what you ate for breakfast!  Cheers!

Print Magazines Successfully Alienating Subscribers @Family_Handyman #DIY #Handyman

I admit it. I’m one of those retro-types who appreciates a good, old-fashioned, tree-killin’ hardcopy of my favorite magazine. And having it show up in my mailbox, at regular intervals courtesy of the friendly folks at USPS, makes it ultra convenient to flip through actual pages of glossy color photos and articles.

I’m also not averse to the occasional do-it-yourself (DIY) project around the house, especially if I think I can save a few bucks without getting in too far over my head. So not surprisingly, one of my favorite reads is The Family Handyman magazine. I almost consider it a “tool”, in and of itself. The magazine’s self-proclaimed mission is, “to serve do-it-yourself homeowners with engaging and practical ways to improve and maintain their homes and yards.” This is something they do very well, in my opinion.  

However, something else they’re doing very well is annoying the crud out of me by sending me umpteen deceptive and misleading renewal notices. Just last week, I received an envelope with a bright orange sticker reading “Account Notice”. Inside I found several notes saying “Expiration Notice”. Upon a closer look, it was apparent they were trying to prod me into renewing my subscription for an additional year, even though I’m currently paid up for another 18 months.  The sense of urgency was created under the guise that my “compensation benefits expire in 15 days”. Oh no! The “compensation benefits to which they referred were a “Gift Subscription” I would be able to give if I acted immediately. Never mind the fact that I would be required to pay 50% more than my regular renewal rate for an additional year just for this special privilege.

Soon I’ll have to write @Family_Handyman magazine a nasty cancellation notice, just like the one I had to send to their competitor, The Handyman Club of America a few years ago. In exchange for subscribing to their Handy magazine, they thanked me by consistently sending me hardback books, without me having to even ask! I would get to preview these books that I never wanted for free for 30 days! And I was under no obligation…except I had to return the book to them within 30 days. But who doesn’t want an extra trip to the post office and a little wait in line with some of our neighbors and friends? Or, I also had the option to pay for the book that I never wanted — just $29.99! Then I could keep the book! Did I mention I never wanted it?

I guess it’s looking like I’m going to have to lose my affinity for the good, old, glossy printed mags.