Bob was first to visit the drug dealer. Then came the engineer, and then the couple from Philadelphia. None wanted their picture taken, and none were willing to divulge their full names. Even though everything they were doing was legal.
The dealer was Herbal Nation in Bothell, the Eastside’s lone recreational marijuana. Though Bob, the engineer, and the Philly couple were doing the herbal equivalent of buying a fifth from the liquor store, they were cautious. Their reasoning illustrates a gray area since Initiative 502 legalized the purchase and consumption of marijuana: Even though they were purchasing a legal product to consume, they could be fired if their employers found out — even if that employer receives taxes from marijuana sales.
“I-502 … may signal a societal trend that may one day change things at the federal level,” says Jim Shore, an employment attorney at Stoel Rives’ Seattle office. “But nothing is going to change as long as marijuana remains illegal under federal law.”
This dilemma is on display in Colorado, where the state Supreme Court is deliberating whether Dish Network had the right to fire a man for using medical marijuana. Dish fired Brandon Coats in 2010 after a drug test revealed traces of THC, even though Coats is licensed to consume medical marijuana and told the company so. Coats has said he never used nor was under the influence of marijuana while on the job, but that was of no concern to Dish, which has a no-tolerance drug policy. Though the case is dealing with medical marijuana use, it is likely the justices will extrapolate its meaning to instances dealing with recreational pot.
A nearly identical case worked its way through the Washington courts in 2011. In Roe v. TeleTech, the Washington Supreme Court ruled that employers have a right to terminate employees, even those with medicinal licenses, for using marijuana because it is illegal on a federal level.
“Even though, technically, federal law doesn’t preempt state law in these issues, in the TeleTech case the judges made very clear they were not going to create a public policy that protected an act that was illegal under federal law,” says Shore, who was TeleTech’s counsel.
The Coats case differs in that Colorado has a lawful off-duty activities statute, which means that employees can’t be fired for legal activities performed outside of work. Colorado’s justices must now answer whether state or federal law determines what is “lawful.”
Washington doesn’t have a lawful off-duty activities statute, which puts many pot-smoking employees at risk, even if they don’t use it on the job. The reason is that many workers are employed on an at-will basis, which gives the employer plenty of leeway in justifying termination.
“People often fail to appreciate (at-will employment) means you can be fired for any reason or no reason,” says Jesse Wing, an attorney with MacDonald, Hoague & Bayless. “(Marijuana) is not any different than any other legal reason to terminate somebody. So if you can be terminated for drinking Pepsi, you can be terminated for smoking pot.”
At-will employees have few options for recourse if they’re fired, but there is a saving grace for marijuana consumers who are in unions: just cause. If a collective bargaining agreement says termination can only occur with just cause, an employee is far less likely to lose a job for smoking pot on their own time, and any wrongful termination argument goes to an arbitrator, not the courtroom.
Union membership doesn’t mean employees can smoke away, even if they work for the state that legalized the drug. Since there is no off-duty use policy that applies to all agencies, State of Washington employees are subject to the codes of conduct of their respective agencies and applicable collective bargaining agreements, says Jim Erskine with the state Department of Enterprise Services. Washington State Patrol troopers, for example, must abide by local, state, and federal laws on and off duty, according to spokesperson Bob Calkins. “That’s a condition of the agency, and we make it very clear upfront,” he says. “So if you choose to work for the agency, you choose to follow that rule.”
But with marijuana being a revenue stream for the state, Wing thinks termination on pot-use grounds is unlikely. “I think it would be really hard for the state of Washington to terminate an employee on the basis that doing something the state has set as legal constitutes just cause,” he says.
Punishment is possible, though, so state employees who want to use the product that’s thus far netted their employer $4.7 million in tax revenue might have to take the same approach as Bob, the engineer, and the Philly couple at Herbal Nation: Lay low, and don’t let your boss find out.