Even where pot is legal, it’s not always welcome at work

By Andy Mannix / The Seattle Times

SEATTLE — Last Tuesday, Seattle City Attorney Pete Holmes made a spectacle of being among the first to buy pot from Cannabis City, Seattle’s inaugural retail marijuana shop. He bought two 2-gram bags of OG’s Pearl that day: one for posterity, he said, the other for “personal enjoyment when it’s appropriate.”

“Today marijuana sales became legal and I’m here to personally exercise that new freedom,” Holmes said. Then he went back to his office — with the pot.

While it might be acceptable by state law, taking marijuana to work is not a freedom city employees have, according to the city drug policy. Friday afternoon, Holmes apologized for bringing the pot to his office and volunteered to donate $3,000 to downtown emergency services.

“When I brought the unopened marijuana to city offices — trying to keep up with a busy schedule — I nonetheless violated the city’s rules,” Holmes said in a statement.

Holmes’ apology doesn’t address his plans for “personal enjoyment,” though that, too, would seem to violate the city’s policy, which specifies: “Possession includes having detectable amounts in your body.” Spokeswoman Kimberly Mills on Friday said Holmes, an elected official, is not exempt from the policy, but he “never intended to use it any time soon.”

The case highlights the complicated relationship between state law and workplace policies pertaining to marijuana in Washington. With the first round of retail shops now open, Washingtonians can walk into a store, buy a bag of weed and go home and light up in full compliance of state law.

But that doesn’t mean they won’t be punished — or even fired — for it.

Employers still have discretion over setting guidelines for worker drug use. For certain professions, such as truck drivers who rely on federally issued commercial driver’s licenses, marijuana is generally prohibited across the board. But for most industries in Washington, policies are set by the employer, and having traces of marijuana in your system can still be grounds for firing.

“There is an element that’s industry-by-industry based on those regulations,” said Mark Berry, employment attorney for Davis Wright Tremaine. “Once you get outside of that, I think it tends to be employer-by-employer. And each employer is making a judgment on how they want to enforce rules.”

Some companies appear to be taking a softer approach to enforcing drug policies related to marijuana use, said Michael Subit, Seattle-based employment-law attorney.

In 2011, Subit represented a worker who was fired for smoking medical marijuana. The case made it to the state Supreme Court, where the employer eventually won.

“You still can be fired for using it,” said Subit of legal recreational pot. “But you can be fired for doing many things that are legal.”

Subit said he hasn’t received calls from employees being fired for smoking marijuana in months, which is what leads him to believe more employers are lightening up on the issue.

Many companies have come to treat marijuana with the same deference as alcohol. Just don’t do it on the job, said Roshelle Pavlin, spokeswoman for the Washington State Human Resources Council.

“We’re not recommending that people do anything one way or the other,” she said. “But yeah, not at work, just like you don’t drink at work.”

Daniel Swedlow, attorney for Teamsters Local 117 —which represents more than 16,000 workers for 200 employers — said he’s seen continuing issues and arbitrations since Washington’s new marijuana laws went into effect in 2013.

Swedlow has seen a surge of employees calling him to inquire about their rights to consume pot now that it’s legal. In some extreme cases, employers have even given up trying to screen for marijuana.

“I think that some employers — very few, but some — have just stopped testing for pot,” he said. “They don’t want to know.”

More often, Swedlow said, he’s seen employers taking a stricter approach to policies against marijuana use.

He said many companies have attempted to change policy language during collective bargaining to specifically include marijuana, or even marijuana metabolites, which can stay in the bloodstream long after a person smokes.

“My experience so far has been that, as marijuana use is becoming more normalized, employers are backlashing against it,” he said.