AKRON—While it's now legal for employees of Colorado and Washington tire and automotive service shops to get “high,” that doesn't mean their employers can't hold them to “higher” standards.
In December 2012, the states became the first two—and only ones so far—to legalize the recreational use of marijuana for those age 21 and older. On Jan. 1, 2014, Colorado took it a step further, becoming the first U.S. state to allow legal retail sale of the drug.
In spite of pot's newfound legal status, employers in both states retain the right to enforce their own drug policies. And many appear to be doing just that.
Colorado's Amendment 64, which legalizes recreational use of marijuana in the state, specifically addresses the issue, noting that nothing in the law “is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”
Further, employers are able to completely prohibit or regulate the possession and use of marijuana on their property. Both rules can apply to employees who are on- or off-duty.
Washington's Initiative 502, which legalizes recreational use of marijuana, does not include provisions related to drug testing or employee use of the substance, according to the Washington State Liquor Control Board (WSLCB) website.
However, state courts have sided with employers when it comes to regulating the use of marijuana in the workplace. As it stands, marijuana—both for recreational and medical use—is still illegal on the federal level.
Tire and auto service shops, which serve a safety-focused industry, are opting to restate—not revise—their existing policies.
For Terry Hoadley, general manager of Colorado Springs, Colo.-based Tire World Auto Repair Centers, the change has had no impact on the way the dealership does business—and handles employee matters.
“We have a drug policy that's been the same drug policy for quite some time, and my understanding is that the employer policy at the workplace overrides any of the other outside laws that are going on,” he told Tire Business. “It's not posed us any problem in the workplace.”
Mr. Hoadley said the company's policy has been “sound and true” for several years, and he doesn't see a reason to change anything.
Nick Phillippi, general manager of operations for the Nebraskaland/Kan-sas-land/-Coloradoland Tire Group, which has nine of its 42 locations in Colorado, said that while the legalization of reefer hasn't affected the company, he has taken steps to make sure employees know that nothing in the drug policy has changed.
“What we've experienced is simply the request from some of our people to clarify what our corporate stand is, and how we're now viewing the recreational use of marijuana,” he said. “We pretty much just sent them information that states that it's still a federal offense, and it's still considered a controlled substance, and therefore we're not changing anything with our approach—that if you're under the influence you're in violation of company policy and federal law and could be subject to termination.”
For others, the new law has had a more direct impact.
Seth Smith, manager for Edmonds, Wash.-based Factory Direct Tire, told Tire Business the dealership, owned by Nash Alibhai, already has had to let two employees go for drug-related issues following the legalization of marijuana.
“I think it has a time and a place, and the workplace is definitely not the place,” he said. “...We don't make people take UAs (urine analysis) or a drug test, but when you go on your 30-minute lunch and you come back and you walk into the shop to sign in and there's a cloud of smoke behind you—and I mean there's physical signs, and anyone that's gone to college knows what that looks like—it was pretty obvious on a couple cases, and we had to let them go.”
Factory Direct also has a second location in Lynwood, Wash., where he said the company does custom wheel refinishing for insurance companies in Washington and surrounding states. Between the two outlets, the company has about 14 mechanics and technicians.
Mr. Smith, who along with another manager handles most of the hiring and firing at Factory Direct, said he's never let anyone go specifically for marijuana use, but he has fired people due to performance issues. It's all a matter of wording, he said.
“I'm not going to fire somebody based on their personal life choices, but if you can't do the job to our company standards then you have a performance issue, and I will let you go for having performance issues,” he said.
Though the law has favored employers so far, growing usage of the drug could mean more challenges to workplace drug policies in the future.
Mr. Phillippi said he believes Colorado will push to quantify the level of marijuana detected that would constitute being under the influence at work, noting that tetrahydrocannabinol (THC), the drug's active ingredient, can remain detectable in the human body for weeks after use.
“Alcohol is out of the system quickly. You drink Friday night, you go to work Monday morning, you have no alcohol in your system,” he said. “You smoke Friday night after work and the next Monday—a week later—it's still going to be in your system. That's really the difference that I think is going to play out, probably in a court of law.”
It should be noted that law enforcement officials in Colorado and Washington are wrestling with how to test a motorist for being under the possible influence of marijuana—aside from visible signs such as weaving while driving, etc. Some are looking into devices—similar, perhaps, to a type of “breathalyzer” used for alcohol-related traffic stops—that could measure the level of THC in a driver's blood.
Mr. Phillippi speculated that future laws may require that people test above a certain THC level—likely the same 5-nano-gram limit that constitutes a DUI in the state—in order for it to be a terminable offense.
“The lawyers will say, 'The state is saying a driver isn't impaired if he isn't at least that level, so how can an employer?'' he said.
The growing use of the drug may also make it difficult to find good employees, Mr. Hoadley speculated.
“It certainly hasn't caused us any problems at this point. I guess the other side of it is if usage is increasing, especially in the younger generation, then it might be more difficult to acquire employees, because they've got to pass the drug test in order to be hired,” he said. “That could narrow the playing field a little bit, so to speak.”
Mr. Phillippi agreed.
“We already have a problem with finding insurable people or people that have valid driver's licenses,” he said. “That's already been a crisis across the country for multiple employers. Everybody's cracked down so hard—as you can say they should—on DUIs and even speeding, driving without a license or not having insurance, and insurance companies are becoming so much stricter on the guidelines to employers on what constitutes an uninsurable employee.”
Mr. Phillippi said Nebraskaland/Kansas-land/Coloradoland Tire Group's own pool of insurable applicants has been shrinking in recent years, and he doesn't see that trend reversing anytime soon.
“The tire business, the automotive repair business has done itself a great disservice in allowing the mantra to be out there that it's a dirty, nasty, greasy job that you can't make a living at and the only people that do are the ones that can't do other stuff,” he said.
“...You don't have people lined up to come to work for you necessarily anyway, and then on top of that the group of applicants that you do get, we have at least 20 percent—and that number may actually be higher—that don't have a license at all. And then we're probably at another 10 to 15 percent in the last two years that, even though they have a license, our insurance company's newest restrictions won't insure them to be able to operate vehicles for us.”
He added that the legalization of marijuana is “just going to compound” the matter because it's “just one more thing to show up on their vehicle record.”
To reach this reporter: wschertz@ crain.com; 330-865-6148.