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Cannabis North

With pot legal in Alaska, can you still get fired for failing a drug test?

On Tuesday, using cannabis for the heck of it will officially be legal under Alaska state law.

But can it still get you fired from your job?

Under a ballot measure approved by voters in November, possession and recreational use of marijuana by those over 21 will no longer be prohibited. But for employers and employees in Alaska, legalization raises a thicket of questions about privacy, safety, and whether what you do legally on Saturday night can be held against you at work on Monday morning, in the form of a drug test.

Experts say the answers will likely have to be worked out in the courts.

An issue for many

In Alaska, a state where safety-focused industries like oil and gas, seafood processing, transportation and health care are major employers, lots of workers have the potential to be drug tested.

Ballot Measure 2, which put legal pot on the ballot in Alaska, explicitly says employers have the right to make up their own rules about cannabis use.

On-the-job intoxication of any kind is clearly indefensible, legal and employment experts say.

"Alcohol is legal, but I imagine most jobs if you show up drunk you're getting fired or disciplined," said Jason Brandeis, a professor with the University of Alaska Anchorage's Justice Center.

Things get much hazier, though, when you talk about marijuana use outside of work hours. Especially because unlike alcohol, marijuana can be detected by common drug testing methods, including urinalysis, days or weeks after being consumed, making it hard to pinpoint a reliable timeline of use.

In the past, one of the justifications for disciplining an employee who tested positive for marijuana -- but who may not have been impaired at work -- would have been that they were engaging in unlawful conduct, Brandeis said.

Now that conduct is lawful in the eyes of the state. But even that argument is still tricky, he said, because of the continuing conflict between Alaska law and federal law.

The many Alaska employers that either receive funds from or contract with the federal government are supposed to abide by the 1988 Drug-Free Workplace Act. Under the terms of that law, marijuana is a no-go.

"I imagine there will be some court cases that come out of this," Brandeis said.

That's already happened in Colorado, where a case brought by an employee fired for using medical marijuana is being considered by the state Supreme Court.

An issue that can't be ignored

Marijuana use among employees is something Alaska businesses may no longer be able to ignore, said Lynne Curry, president of The Growth Company, an Anchorage management and human resources consulting firm and a regular contributor to Alaska Dispatch News.

"Unless an employer has something specific to cannabis they won't be prepared to deal with the employees who use it recreationally," Curry said. "If they try to use the same broad brush they use for other drugs that are illegal, they may lose staff they highly value."

Curry advises employers to consider policies "more in line with what they have for alcohol."

Alaska employers seem eager to know how legalization will affect the way they deal with their employees, said Richard Birdsall, a senior management consultant with The Growth Company. Three clients called the day after the cannabis initiative passed, he said.

So much interest in the topic built that the company is now teaching a course that shows employers how to prepare themselves for legalization by drafting policies and shoring up insurance. More than 20 business have asked for help, Birdsall said.

For now, he advises employers to get a drug use and testing policy down on paper, and to understand that as with all areas of the marijuana policy, things are in flux.

"I imagine there will be a great deal of upheaval in the future," he said.

But a handful of big Alaska employers -- including UniSea, NMS, a subsidiary of NANA Development Corp., the Anchorage School District and Providence Health & Services Alaska -- responded to requests for comment by saying they see no need to change their current drug testing policies.

"In a nutshell, it's business as usual for our crew," said Dawn Kimberlin of NMS.

"There does not seem to be an immediate need to change any policy or practice," wrote Nancy Sutch with the Alaska Department of Administration, which oversees 16,158 people employed by the state.

A surprise test

Thirty-two years ago, two Alaska brothers challenged their company's drug testing policy in a lawsuit that went all the way to the state Supreme Court.

Now, the case of Luedtke v. Nabors Alaska Drilling carries a new resonance.

In 1982, Clarence Luedtke and his brother Paul were working for a North Slope drilling outfit. After a 28-day furlough period, Paul Luedtke was given a surprise drug test. He failed it and was fired.

Clarence Luedtke said that while he'd smoked marijuana in the 1960s and '70s, he was done with it by 1982. Providing a clean sample wouldn't have been a problem. But he took umbrage at the idea that time-off activities were the company's business. He refused to undergo a drug test and was fired, too.

"My original aversion to the whole thing was if they were gonna prescribe activities during a person's day off and time off (the employee) should be compensated for it," Luedtke said in a recent interview from his Chugiak home.

It would be one thing, he said, if he and his brother had been on-call to work. They weren't.

"If I'm a nurse on-call I don't go sitting down at a poker table and start slammin' whiskey sours," he said.

The brothers sued, saying the tests were inaccurate, unfair and an invasion of privacy.

Ultimately, the Alaska Supreme Court in 1989 ruled that drug testing by employers had to be balanced between protection of health and safety and employee privacy, the Anchorage Daily News reported at the time. Employers should be concerned only about drug use that could impact performance at work, not drug use in general, and tests must be conducted "at a time reasonably contemporaneous with the employee's work time."

While the ruling upheld the Luedtke brothers' dismissals from the company, it did establish an important principle still at play in Alaska employment law, said Birdsall, the management consultant: To discipline or fire an employee for drug test results, there has to be some "nexus between the use and the work."

At the dawn of a new era of marijuana regulation in Alaska, there are few clear-cut answers.

Now would not be the time to make assumptions about what will and won't be tolerated by your employer, Birdsall said: Best to make sure everyone is on the same page.

In the years after the court case, Luedtke built a career doing inspections of electrical work, specializing in airfield lighting. He is now semi-retired.

"The talent and productivity has spoken for itself," he said. "It doesn't matter what I do on my day off."

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