Following passage of Washington’s Initiative 502, which legalized recreational marijuana use and possession in that state, employers have been asking how the new law will impact existing drug-testing policies.
The short answer is that the new law does not appear to require employers to modify their existing drug-testing policies. At the same time, the new law should be expected to lead to more positive tests, more terminations for drug-policy violations, and more legal challenges.
On Nov, 6, 2012, Washington voters approved Initiative 502 by a wide margin. Among other things, the new law permits persons 21 years of age and older to possess and use small amounts of marijuana.
It also provides for the licensure and regulation of marijuana production and distribution. And it removes state law criminal and civil penalties for any activities authorized by the law. That said, marijuana use and possession remains illegal under federal law.
Initiative 502 is silent on two key topics:
• It does not require employers to take any action or to permit any conduct in the workplace.
• The law does not modify any aspect of the State of Washington’s already-existing Medical Use of Marijuana Act (MUMA), which the Washington Supreme Court held does not create any employment protections for applicants or employees.
Therefore, the bottom line for Washington employers should be that they are free to adopt and enforce drug and alcohol policies that prohibit the use or possession of marijuana in the workplace.
Moreover, employers should continue to be free to discipline employees for violations of their drug and alcohol policies. For example, if an employer’s policy calls for the termination of an employee who tests positive for marijuana, the employer will continue to be free to strictly enforce that policy.
The Washington Supreme Court’s June 9, 2011, decision in Roe v. TeleTech Customer Care Management held that MUMA does not create any employment protections for applicants or employees. This means that consistent with the federal ADA, Washington employers are not required to accommodate the medical use of marijuana and are not required to engage in the interactive process regarding potential accommodations.
The Roe decision specifically rejected any inference that MUMA requires accommodation where the only use of medical marijuana is outside of the workplace and where that use does not create a safety threat in the workplace.
“One would expect any statute creating employment protections for authorized medical marijuana users might include exceptions for certain occupations or permissible levels of impairment on the job. Indeed, describing MUMA’s alleged employment protections, Roe argues an employer only has a duty to accommodate an employee’s off-site medical marijuana use if the employee’s use would not affect job safety or performance. But nothing in MUMA suggests the drafters or voters considered such issues or contemplated the regulatory scheme suggested by Roe’s proposed safety and performance exceptions. This statutory silence supports the conclusion that MUMA does not require employers to accommodate off-site medical marijuana use.”
Obviously, the Roe decision does not interpret Initiative 502. However, Roe’s analysis of the statutory silence in MUMA should apply in the same way to Initiative 502’s absence of any provisions requiring employers to take any action or permit any conduct in the workplace.
While there are no immediate impacts for employers, there are a number of practical considerations:
• The Obama Administration has indicated it will not be focusing its prosecutorial efforts on recreational drug users in states, such as Washington and Colorado, that have decriminalized marijuana use.
This means there is likely to be an increase in the number of Washington residents using marijuana, which will mean an increase in the number of marijuana users seeking employment. That will likely lead to an increase in the number of applicants/employees testing positive for marijuana use.
• It is possible that the rising number of disciplinary actions resulting from violations of workplace drug and alcohol policies will lead to greater legislative or judicial pressure to adjust the law in a manner that provides some form of protection for the lawful recreational and/or medical use of marijuana.
(Michael G. McClory is an employment attorney and shareholder for Bullard Law. His practice includes disability and reasonable accommodation counseling, termination/employee performance counseling, discrimination and harassment law, employee/employer contracts, and affirmative action/government contract law.)