Marijuana legalization in Colorado put business owners like Dottie Peterson in a quandary.
Peterson doesn’t want workers at the staffing service she operates to use marijuana on the job, though she doesn’t mind if they do it in their free time. But she can’t hire drug users because of her insurance. Many companies, including hers, get better worker’s compensation insurance rates by being a drug-free workplace, so the new employees she hires must pass drug tests.
“The sticky wicket is magnified because it is legal,” Peterson said at a recent Colorado Staffing Association luncheon at a Dave and Buster’s restaurant near a Denver highway exchange. “Some employees say, ‘But it’s legal.’ But it’s not legal if you are declaring yourself a drug-free workplace under federal law.”
Safety is another reason some Colorado business owners are reluctant to hire workers who consume the drug, even during their free time. They’re afraid of being sued if a drug-using worker gets into an accident. Others say cannabis consumption leads to more health problems and absences for workers.
These types of concerns are weighing heavily on the minds of Ohio business leaders as it becomes increasingly likely that voters in the state will face at least one marijuana legalization amendment this November.
The experience in Colorado, where employers face a hiring pool that increasingly tests positive for marijuana, may not do much to ease those concerns.
Many business owners campaigned against the 2012 amendment to legalize recreational marijuana in Colorado, and after it passed, more than a dozen organizations begged then-U.S. Attorney General Eric Holder to enforce the federal Controlled Substances Act in Colorado.
“Passage of Amendment 64 has left considerable uncertainty for employers and businesses in Colorado with regard to their legal rights and obligations,” they said in a letter to Holder. “At a time when the Colorado economy is successfully emerging from the most recent economic downturn, enjoying certainty in our business decisions will assure continued growth in our economy.”
Tony Milo’s group was one of those pleading for action, although Holder months later told Colorado he wouldn’t challenge the state’s legalization law. Milo, executive director of the Colorado Contractors Association, says his 130 member companies are having a harder time finding drug-free workers in a strong economy where there’s fierce competition for reliable employees. Most of his members require pre-employment drug testing, given the safety needs of working in traffic and on big machinery.
“Anyone who is impaired on the job is not only putting themselves at risk, they are putting their co-workers and the general public at risk,” says Milo. “Young people need to realize that even though marijuana may be legal in Colorado, if you want a good job in a field that is safety sensitive, it still has to comply with federal regulations. You have to be drug free to grab those careers.”
Denver’s public transit system has also had difficulty finding drug-free bus drivers and other workers, says spokesman Scott Reed. (Federal law forbids safety‐sensitive transportation workers, such as pilots, school-bus drivers, ship captains and train engineers, from using marijuana even if they live in a place where it’s legal.)
“Because the economy is recovering so rapidly, there is a lot of competition for drivers, mechanics and other related positions,” Reed said.
After Colorado legalized marijuana, the transit system noticed a five to 10 percent rise in the proportion of applicants who tested positive for drug use and didn’t get hired, Reed said.
In the year after Colorado legalized marijuana use, the percentage of positives found on pre-employment marijuana screenings conducted by Quest Diagnostics jumped from 1.92 percent to 2.3 percent, the company reported. In 2014, the proportion of positive test results rose again, to 2.62 percent.
Even businesses that aren’t in safety sensitive fields don’t necessarily want workers who use marijuana. A company called Little Spider Creations, which makes horror-themed sculptures for use in haunted houses and amusement parks, told a Colorado television station it relocated from Denver to South Carolina earlier this year because too many workers showed up to work stoned after marijuana was legalized. Its owner, Marc Brawner, told KUSA-TV his employees’ attention to details suffered when they used pot.
After his remarks were publicized, Brawner backtracked and posted statements on his Facebook page saying his televised statements were taken out of context. He acknowledged his company reprimanded some employees who came to work stoned, but said that didn’t cause the company’s move. He described the move as “a strategic business decision.” Brawner did not respond to Northeast Ohio Media Group’s request for comment.
At the recent Colorado Staffing Association lunch meeting, business owners talked about the challenges that marijuana legalization has brought to their lives. Some said that candidates for less skilled, lower-paid jobs were more likely to use marijuana than those seeking higher paid jobs that require more training.
“Marijuana has always been an issue and it always will be,” said Melodee Sidebottom, of Job Store Staffing in Denver. “Now that it’s legal, it’s easier to get. If you are applying for a job, you don’t want to come in smelling like it on your clothes.”
One woman, who didn’t want her name or that of her recruiting company used, said candidates for the $9.50-per-hour unskilled day labor jobs that her company fills sometimes smoke joints outside the window of her office and then come inside looking for work.
She advises them it’s illegal to smoke marijuana in public and that they need to be smarter about it. Candidates who regularly show up buzzed are fired. Many of the companies where her organization sends employees say they don’t want workers to use marijuana on the job, but don’t object if they use it when they’re off work, she said.
Bob Bidwell, who heads the nonprofit trade group for Colorado job recruiters, says he’s noticed a “small uptick” in the number of positives for marijuana use among the workers his industrial staffing firm has tried to place in manufacturing, logistics, and construction jobs.
“The competent employees, or prospective employees, that are looking for work know to lay off the stuff,” says Bidwell, who runs ROLINC Staffing. “It does stay in your body for a while – weeks or more. If you are looking for a job, the thing to do is to quit using the stuff and come clean on a drug test.”
Peterson, who operates Snelling Staffing Services, says she finds that younger workers “who live in the now” often don’t understand that they shouldn’t smoke pot if they’re looking for a job.
Her firm hires workers to perform administrative, accounting and some light industrial work. Not all of her clients require workers who can pass drug screenings, although many do.
“If they are 21 and just out of college in Colorado, they don’t understand why they have to pass a drug test to get hired,” says Peterson. “It is very much a mixed message. I don’t know how to respond. It’s just unfair to say you can smoke pot, but to get a job, you can’t.”
Courts in Colorado and across the nation have upheld the right of employers to fire workers who use marijuana – even when they’re not on the job.
On June 15, Colorado’s Supreme Court upheld the firing of medical marijuana user Brandon Coats. Coats, who was paralyzed as a teenager in a car crash, was fired as a telephone customer service representative at Colorado’s DISH Network in 2011 after failing a random drug screening, even though he had satisfactory performance reviews and didn’t use the drug on the job.
Coats sued the company, alleging that it violated a longstanding Colorado statute that bans employers from discriminating against employees who engage in legal off-duty conduct, such as cigarette smoking or eating unhealthy food. DISH countered that Coats’ marijuana use violated its drug-free workplace policies, as well as federal laws that make marijuana use illegal.
The court ruled that employees “who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”
The National Federation of Independent Business said it was “extremely happy” with the court ruling because marijuana is illegal under federal law and companies “have a very powerful obligation to protect their employees, their customers and themselves,” said Karen Harned, who heads the organization’s Small Business Legal Center.
“Colorado’s drug law cannot be used as a means of forcing companies to assume unnecessary financial and legal risks,” Harned continued. “This particular case is very emotional and we sympathize with the original plaintiff, but workplace drug policies are there to protect everyone.”
Ohio doesn’t have a law like Colorado’s to protect workers from termination if they engage in lawful practices outside work that their employer dislikes. Several Ohio businesses, such as Cleveland Clinic, don’t allow nicotine use by their workers at any time. A marijuana policy report commissioned by backers of the ResponsibleOhio marijuana legalization amendment said Ohio’s lack of such a law would “strengthen the hand of the state’s employers in the wake of legalization,” and allow them to implement zero tolerance marijuana use policies.
However, a provision in the Ohio amendment appears to provide an exception for patients certified to use medical marijuana. That language has caused concern among employers, and some think the issue might not be cleared up without court rulings.
Curtis Graves of the Mountain States Employers Council, a Denver organization that provides legal services and human resources assistance to approximately 3,000 companies in 12 states including Colorado, predicted Coats’ case “will probably settle things until the status of marijuana changes at the federal level.”
“While the court’s decision is not surprising, it solidifies — for now — employers’ ability to terminate employees for marijuana use in or out of the workplace,” said Graves. “However, the issue is far from over for employers, as marijuana’s legal status is certain to evolve for years to come.”