Introduction
In 2012 Washington and Colorado legalized the recreational use of marijuana by adults over the age of 21. Washington’s marijuana stores are managed and overseen by the Washington Liquor Control Board and will operate similarly to how liquor stores used to operate in the state.
Even though Washington has legalized the use and possession of a limited amount of marijuana, the federal Controlled Substances Act still classifies marijuana as a Schedule One controlled substance. This means the cultivation, sale, use and possession of marijuana is still illegal under federal law. Questions are now being asked about how Washington’s new state law, and the conflict with federal law, will affect how employers can conduct their business and interact with employees.
Washington employers can still restrict employees from using marijuana at work and in their off time and employers are not required to accommodate disabled employees by allowing medicinal use of marijuana. However, employers are advised to revisit and perhaps revise their drug policies, to clarify the employer’s drug policies in light of this new law.
Pre-Employment Drug Testing:
Employers in Washington can still test for marijuana use and may terminate employees and refuse to hire applicants if he or she tests positive. In a 2011 Washington Supreme Court decided Roe v. TeleTech, where the court upheld summary judgment in favor of the employer after it refused to hire an employee after she tested positive for marijuana on a pre-employment drug test. The employee was legally prescribed marijuana and she sued alleging that her discharge was in violation of a public policy that is implied under Washington’s medical marijuana laws. The Washington Supreme Court disagreed and ruled that a person’s authorization for medical marijuana use is a defense only to criminal charges. It does not provide public policy protections for employees.
In light of the Washington Supreme Court’s ruling in Roe, it is highly unlikely the Court would prohibit employers from terminating employees for recreational use. However, many activist groups are advocating for a change in the law, preventing employers from disciplining employees for medicinal and recreational use of marijuana in their off time. Likely, this will not be the last time we hear from the Washington Supreme Court on this issue.
Possession and/or Use of Marijuana at the Workplace:
The decision in Roe has made it clear that employers can prohibit the possession and use of marijuana in the workplace. In many respects, an employer’s rules on marijuana possession at work may be compared to restrictions on alcohol at work (i.e. if the employer can prohibit alcohol at work, it can prohibit marijuana as well).
Employees who are suspected of being under the influence should be reminded of the employer’s policy and, if needed, sent home from work. An employer can also terminate the employee immediately if he or she is an at-will employee or require they submit to a drug test. However, if the employee has an employment contract limiting termination for cause only, the employer should immediately schedule a drug test for that employee with a third party testing facility. Suspicion of intoxication combined with a positive test result will likely be sufficient cause for termination in this scenario.
Compliance with Licensing or Contract Requirements:
The decision in Roe makes it clear the employer can prohibit employees from using marijuana and requiring employees to take a drug test is a valid enforcement mechanism to maintain a drug free workplace. It follows that employers may require employees to submit to drug screening as a requirement for any special licensing or other requirement of the employer.
Some contracts, including federal contracts, require the employer to maintain a drug-free workplace. Under the Drug Free Workplace Act of 1988, the federal contracting agency may require contractors to maintain drug free workplace and can impose penalties on the contractor if they fail to do so. Simply put, a state law legalizing recreational use of marijuana will not invalidate federal laws or regulations concerning illegal drug use.
Best Practices for Employers:
Employers must take necessary steps to ensure employees are informed of the impacts of Initiative 502. Employers are advised to revise their employee handbook to update the drug policies so that the employer’s stance on marijuana clear. These revised handbooks should then be distributed to all existing employees, informing them of the changes made.
In addition to new handbooks, employers should hold an office-wide meeting or distribute a memorandum to all employees explaining that, while marijuana is legal under Washington law, it remains illegal under federal law and the employer will still enforce drug free workplace policies.
While informing employees of changes and revising the handbooks is valuable, the most important requirement of employers is the consistent application of its policies. Employers must be prepared to implement their drug policies exactly how they are written. A consistent and uniform enforcement of the company’s drug policy is an employer’s best tool in maintaining a drug free workplace.
Impact on the Labor Shortage
It is widely known that many employers, particularly in the construction industry, are experiencing a shortage of qualified, competent and available workers. There are numerous causes for the shortage, but one thing that most employers can agree on, is that legal recreational marijuana is not helping.
Some companies have tried to address this issue by relaxing their drug policies and allowing an employee who tests positive marijuana to be placed on a probationary status, pending a subsequent clean test. If you are the type of employer who is not subject to the Drug Free Workplace requirements (i.e., federal projects and the like) it may be beneficial to consider this type of new policy.
Another potential consideration is that employers can write policies which give them discretion on the limits of THC an employee can have in his/her system which determine a positive test. Because there is still no test currently available which determines a person is actually impaired at the time of testing (like a breathalyzer detects alcohol), this test, combined with reasonable suspicion training to recognize actual impairment, may be the best way to determine actual impairment in the workplace.
Finally, some employers are doing away with pre-employment and random drug testing altogether or will not consider testing positive for marijuana as a “failure” of such a test. These employers will still keep their policies for reasonable suspicion testing and post-accident testing where necessary. Neither of these alternatives are a “one size fits all” approach, and each employer will need to evaluate their business, their ability to attract talented employees, and the tasks said employees perform, to determine what type of new drug policy works best for them.