Gray Lumber enforces a zero-tolerance policy when it comes to on-the-job impairment from drugs or alcohol. The Tacoma, Wash.–based pro dealer pretests all job applicants and, in compliance with Department of Transportation requirements, conducts random tests of drivers.

Gray Lumber also asserts its right to test any employee “for cause,” such as when a yard accident occurs.

But after voters in Washington and Colorado approved the legalization of marijuana for personal recreational use in private, and the U.S. Justice Department decided not to challenge those states’ more lenient drug enforcement shifts, companies such as Gray Lumber had to rethink what “zero tolerance” meant within the country’s ever-changing societal and legal parameters.

According to the Marijuana Policy Project (MPP), 20 states and the District of Columbia have decriminalized marijuana for medicinal use. Another 15 states have decriminalized small amounts of marijuana for personal use; and 14 states and D.C. allow for state-regulated dispensing of marijuana to customers for personal use. MPP is supporting efforts to end marijuana prohibition in another 10 states by 2017.

California Rep. Dana Rohrbacher has introduced a bill that, if passed, would leave marijuana policies up to the states. In New Jersey—where in September Gov. Chris Christie signed a law that loosens the state’s medical marijuana policies—a poll commissioned by the Drug Policy Alliance found that 59% of likely voters favor legalizing, taxing, and regulating marijuana. Oregon and Alaska voters could consider legalization bills next year.

National Standards

In September, dealer associations in Colorado and Washington struggled with how to best advise members on their employee policies and liabilities.

“I’ve done some checking on this with state agencies and have gotten three different answers,” says Casey Voorhees, executive director of the Western Building Materials Association in Olympia, Wash.

Voorhees believes dealers can “hold the line” on zero tolerance but must adjust the language in their manuals to reflect that marijuana is no longer an illegal substance.

“I feel this is all tied to taxes and the economy more than anything else,” says Geri Adams, executive vice president of the Denver–based Mountain States Lumber & Building Material Dealers Association.

She foresees a “quagmire” in trying to reconcile state and federal laws, and predicts “litigation is inevitable.” That’s certainly in the back of some dealers’ minds. Paul Hylbert, CEO of Barton Lumber, in Aurora, Colo., says his company will continue to enforce its zero-tolerance policy “until we get sued, which is possible.”

Fear not, says Jack West, national accounts executive with Federated Insurance, which covers many pro dealers’ operations. He advises employers to deal with marijuana use as they do alcohol use. “Alcohol is legal, but a business would definitely not want to allow consumption at work or for an employee to be under the influence during work,” he says.

According to West, the key defense against a potential lawsuit is whether that business has a drug-free workplace program in place and treats all employees equally.

Some dealers, such as Mike Dunn of Dunn Lumber, don’t feel compelled to make any changes to their policies. Others have reverted to federal drug enforcement laws to buttress their companies’ policies.

Gray Lumber, for example, rewrote its employee manual to indicate that the company now follows national standards for alcohol and drug use. So at-work use isn’t tolerated, “and if you’re impaired, you’re impaired,” says Steve Gray, the company’s secretary-treasurer.

The president of a leading Colorado–based dealer, who requested anonymity on “this sticky topic,” says his company continues to promote itself as a drug-free environment.

“We follow federal standards and hold all of our employees to that level, including me,” he says.

But this executive also thinks that testing science must catch up with current reality. “There needs to be some unimpeachable way that indicates whether a recreational user is still impaired at work.”