Marijuana Use Legal in Washington: What It Means For Employers and Employees

November, 2012


This week, Washington State passed Initiative 502, which legalizes the recreational use of marijuana as of December 6, 2012. Once again, employers in Washington are forced to revisit the issue of lawful marijuana use and the impact on drug free workplace initiatives, including substance abuse policies and testing. Because the new law does not address employment issues, the full impact of this law on employers is difficult to determine. Here are a few things to consider as we watch this issue unfold:

Lawful Use —

In 2011, the Washington State Supreme Court held in Roe v. Teletech that an employee’s lawful use of marijuana under the state’s Medical Use of Marijuana Act did not protect the employee from discharge for violation of the company’s drug policy. This case presents a very persuasive argument for employers wishing to maintain the status quo in terms of their substance abuse policies as the case clearly states that even lawful use does not provide any job protections for employees testing positive. Related to this issue, is the fact that marijuana is an illegal drug under federal law. This has also proven a persuasive argument for employers in the past.

At-Will Employment —

Washington employees and employers are subject to at-will employment provisions. This means that employers have the right to terminate an employee at any time for any reason (as long as it is not an unlawful reason). For example, it would be unlawful to terminate an employee because of their race or gender which is protected by law. It would generally not be unlawful to terminate an employee who walked around constantly swearing at people. Swearing is a lawful activity, just like marijuana use will be, but if the conduct violates company policy (even if it’s not illegal) then an employee can be lawfully terminated. Remember, conduct does not have to be illegal to violate company policy.

Random Testing —

Another issue to keep an eye on is whether random drug testing for marijuana will be allowed. In terms of testing for drugs and alcohol, there are different requirements. Because alcohol is a legal substance, random testing is not allowed. Under the new state law, marijuana will also be legal which presents the question of whether random testing for marijuana will be allowed. The argument employers could make in defending such testing is that marijuana is still illegal under federal law (alcohol is not), thus justifying random tests. This issue may be determined in court at some point.

Types of Tests —

An interesting differentiation that many employers aren’t aware of is that breathalyzer tests for alcohol test for impairment, whereas a urine test for drugs is simply a test of detection and is not an accurate test of impairment. Testing for impairment as opposed to simply testing for the presence of a substance is important when it comes to the use of legal substances.

For example, driving with a blood alcohol level of .02 is not unlawful even though the substance is present in the individual’s system. Driving with a blood alcohol level of .08 is illegal based on the actual impairment of individuals at that blood alcohol level. For marijuana use this presents a problem as most employers require a urine test which does not test for impairment. This distinction may only be important if there is a legal decision that protects employees lawfully using under the new law.

Should that happen, this issue will be critical as employers will need a way to differentiate between an employee who is currently impaired versus an employee who is not currently impaired but where marijuana is detected in their system. Under the new law, individuals suspected of driving under the influence of marijuana can be required to take a blood test which is a more accurate test of impairment than urine tests. Again, if a decision is made that protects an employee’s lawful use, employers will need to revisit their testing procedures to test for impairment, not just presence of the substance.

Federal Law —

There are two important points in regards to the fact that marijuana continues to be illegal under federal law. First, employers subject to any federal regulations such as under the Department of Transportation or Federal Aviation Administration should continue to comply with the stricter federal requirements which do not recognize any lawful use of marijuana. Second, as mentioned above, cases in several states have held that lawful use under a state law does not make the use lawful under federal law, thus allowing employers to enforce their drug free workplace policies and practices.

So now what? —

The only thing we know for sure is that there are a lot of unanswered questions about the impact of this new law on employers and employees which means we should expect to see these issues come up in court. Although it is difficult to predict with any certainty how these issues will play out, employers continuing to enforce their substance abuse policies without making exceptions for lawful marijuana use appear to be in a strong position based on how these issues have been resolved in the past. However, there are no guarantees.

Finally, remember that even if your organization is not based in Washington, but has employees in Washington or who travel to Washington, this is an issue your organization will want to address.

Cascade will continue to watch this issue as it unfolds and keep you updated. In the meantime, please do not hesitate to contact us with any questions you may have. We are happy to help you.

 

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