From white-linen restaurants to K Street law firms, D.C. employers have found themselves on the front lines of defining marijuana legalization in the nation’s capital.
If your employee shows up bleary-eyed, can you do anything about it? And what protections will unions be able to offer?
A survey of D.C. business owners and union leaders in the week since the District legalized possession, use and home cultivation of marijuana shows these questions have begun to fuel a lively debate in workplaces.
Well, at least in most places. Construction firms with fleets of heavy machinery and hefty insurance bills have been among the first to reiterate their no-drug policies to employees. The FBI has also left a handy question-and-answer about marijuana use unchanged on its Web site. “Have you used marijuana at all within the last three years?” Those who answer yes, the FBI says, need not apply.
And while a D.C. Council committee tried to bring some clarity to the issue last week, some employers said it only added to the confusion.
Under an emergency measure now in place, and permanent legislation the council will take up later this month, D.C. employers will be banned from requiring drug testing of a prospective employee before extending a job offer.
But the law won’t free employees to light up without consequence. Employers will retain the right to screen for drugs after making a job offer — and to enforce their own drug policies for anyone on the payroll. The law also doesn’t interfere with federal employees, who remain prohibited from lighting up.
The bill’s primary function, said Council member Vincent B. Orange (D), who authored the measure, is to give prospective workers time to “clean up” for a job in workplaces that often prohibit what is now a legal intoxicant in the city.
“It’s a first step,” said Orange, who said he believes the measure will also help employers. “They want to know that, once on the job, employees will be drug-free.”
The D.C. Chamber of Commerce said in an e-mail to Orange’s office that it would not oppose the bill. But Chamber President Harry Wingo declined to comment.
“It’s complicated . . . and employees getting fired is an unintended consequence of marijuana legalization,” said Scott Moss, a professor who specializes in employment law at the University of Colorado at Boulder.
“Legalization laws didn’t anticipate whether employers can fire you for using marijuana in a state that has legalized marijuana.”
In fact, a handful of court cases now working their way through the Colorado court system may shed light on the issue. Moss attended oral arguments before the state’s supreme court last fall for a case — involving a satellite-television company employee fired for marijuana use — that could provide a watershed ruling.
As in Colorado, the issue that employment experts said is likely to emerge in D.C. is that while legalized, the city has not said that marijuana use is a protected right. No U.S. jurisdiction has declared that marijuana falls under anti-discrimination chapters in employment law.
And as long as marijuana remains a controlled substance under federal law, employers can point to that in disputes with employees, Moss said.
Conflicts have increased in Colorado. Positive drug tests have spiked, according to private firms who do much of the testing. And a survey last year of businesses in Colorado found that 71 percent of employers left their drug polices in place. But legalization appeared to have an unintended effect with 21 percent of others. They responded by publishing stricter no-drug policies, according to the Mountain State Employers Council, which conducted the survey.
Among those with the strictest drug policies in the District are employers in the national security arena.
Stewart A. Baker, former general counsel at the National Security Agency and a former senior policy adviser at the Department of Homeland Security, said he could offer only “informed speculation” about how the District’s new drug law might intersect with some of its most secretive employers.
“The traditional view is that drug use in the past five years is not a serious problem; whether it’s a problem at all is a serious question,” Baker said.
“But this is not like sexual preference, where once it’s legal and accepted it’s not a basis for blackmail,” he said. “My guess is it would be treated as a concern even if it’s lawful. Especially in the current context, where it’s lawful at federal level and unlawful at local level.”
On the opposite end of the employment spectrum, it’s still a “sticky situation” there too, said Nikki Lewis, executive director of DC Jobs with Justice, which represents a number of working-class employees.
“It seems like the low-wage job market is getting more and more competitive for hiring — from having to come in a suit to increased drug testing in order to be ‘qualified’ for service, retail, or hospitality” jobs, she said.
Employees who partake could be at risk.
That appears to be true for cooks and servers at I Ricchi, an Italian restaurant near Dupont Circle.
Christianne Ricchi said she’s been thinking about what might happen, and certainly doesn’t want the D.C. government imposing any further rules limiting what she might do.
“I take my responsibility toward my business, toward my current employees and toward my customers very seriously,” Ricchi said. “If the situation arose and I felt it necessary to ask for a marijuana test, I would like to know that I have that available.”
Khalid Pitts, who with his wife owns Cork Wine Bar on 14th Street near Logan Circle, said he feels bound by the ballot measure legalizing marijuana and if employees want to partake on their own time, that’s now their choice.
“Voters have passed rules essentially legalizing it, so in that sense, it should be treated just like we would treat alcohol,” Pitts said. But he’s not worried about a confrontation.
“Let’s just say, I have seen it around,” he said.
J.D. Harrison contributed to this report.