Published on April 27, 2014
On Tuesday, July 8, 2014, the retail sale of marijuana for recreational use became legal in the state of Washington. After the passage of Initiative 502 in November of 2012, which allowed for the possession and consumption of marijuana in small amounts at home, there have been many questions from employers about how the new law affects their employee workplace policies. Below are nine answers to employer questions about the marijuana laws that remain unchanged with the legalized sale of pot last month.
1. Has much really has changed since these new marijuana laws were passed in Washington?
Almost nothing has changed for employers. Marijuana is still an illegal drug under federal law and nothing in Washington changes that.
2. Does the legalization of marijuana use have any effect on my company’s drug-free workplace policies?
No. Employers still can have and enforce drug-free workplace, zero-tolerance policies. Employers with such policies may want to remind their employees that despite the legalization of marijuana in Washington, the employers’ policies have not changed and it is still against company policy to allow any drug use, including marijuana.
3. Can our company still test employees and applicants for marijuana use?
Yes. Employers can test both applicants and current employees for any drug use, including marijuana. You should review your policy about drug testing and consider including language that any detectible amount of marijuana is prohibited, rather than simply prohibiting employees from being “under the influence” of marijuana. This is to avoid any friction with whether someone is “high” or just has marijuana in his or her system (as the drug stays in a person’s system for some time after the “high” has worn off). Employers can discipline or terminate an employee for having any detectible amount of marijuana in his or her system.
4. What can our company do if an employee shows up to work under the influence of marijuana?
You can do anything that you would otherwise do for an employee showing up to work under the influence of alcohol or any other type of drug. For example, you can require immediate drug testing, discipline, or termination. Be sure to look to your policy for guidance.
5. Does our company have to accommodate medical marijuana use?
No, there is no duty under Washington law, federal law, or the Americans with Disabilities Act for employers to accommodate employees that have prescriptions for medical marijuana.
6. Can our company decline to hire an otherwise strong job applicant that either tests positive for marijuana or has a prescription for medical marijuana?
Yes. Employers can uphold their drug-free workplace policies and refuse to hire applicants that test positive for marijuana use, even if the detectible level is low indicating prior marijuana use that remains detectible in the applicant’s system. Employers can refuse to hire applicants that use medical marijuana because medical marijuana users are not a protected class thus they are not subject to any special protections under federal or state law.
7. What if our company wants to hire someone that tests positive for marijuana or has a prescription for medical marijuana?
You can choose to hire someone that tests positive for marijuana use or has a prescription for medical marijuana, but your policies should be consistent with such practice. In other words, do not make an exception from your drug-free workplace policy for a single applicant. Also, a word of caution: employers should consider whether the potential employee will be operating machinery, driving cars, driving customers, or otherwise putting the company, employees, and clients at risk in any way. If that is the case, then hiring such applicant is not recommended.
8. So if nothing much has changed, does our company have to do anything?
At a minimum, you should review your policies and update them as necessary to properly reflect your company’s policies on drug use. For example, you may want to revise your definition of “illegal drugs” to include drugs that are “illegal under federal, state, or local law”, or to state that illegal drugs are those “illegal under the federal Controlled Substances Act”. Employers also may want to remind employees that marijuana use is still prohibited, despite the legalization of it in Washington.
9. Anything else I should know about marijuana and how it affects our company?
Yes. This is an area of law that is changing so be sure to keep informed of all future decisions and changes in law in this area. Also, because the legalization of marijuana use is so new, there may be future challenges to employer practices and policies, such as by employees filing grievances for adverse action taken based on them testing positive for marijuana use. No employer wants to be a test case or subject to an investigation based on a grievance. Employers are advised to seek legal counsel when faced with a question about employee marijuana use, especially for those questions that may not be covered by this article.
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This message has been created by the Employment Rights, Benefits & Labor Group at Ryan, Swanson & Cleveland, PLLC to advise of recent developments in the law. Because each situation is different, this information is intended for general information purposes only and is not intended to provide legal advice on any specific facts and circumstances. Ryan, Swanson & Cleveland, PLLC is a full-service law firm located in Seattle, Washington.