On November 6, 2012, Washington state voters passed Initiative 502 which regulates and taxes sales of small amounts of marijuana for adults. Under the soon-to-be implemented Washington state law, adults in the state may now possess up to an ounce of marijuana, 16 ounces of marijuana products and 72 ounces of liquid infused marijuana products. The initiative passed with a 55 to 45 percent margin.
Because of the obvious conflict between the federal Controlled Substance Abuse Act and the new Washington and Colorado laws, we can expect more developments shortly as these newly authorized state-regulated marijuana markets begin to take shape. Although the Administration (e.g., the Attorney General, etc.) remained silent on the marijuana-legalization initiative throughout the election cycle, it has opposed legalization in the past.
A legal challenge to the Washington and Colorado laws is expected.
How does this affect employers? Neither initiative changes the ability of employers to maintain their current employment policies, nor does it prevent them from creating whatever policies they see fit. If employers do not currently allow off-site marijuana use by employees, they can continue to prohibit it. Neither requires employers to accommodate the use of marijuana by their employees. A recent Washington State Supreme Court decision, Roe v. Teletech, clearly stated that Washington State employers didn’t even have to accommodate workers with a doctor’s authorization to use marijuana under Washington’s Medical Use of Marijuana Act (MUMA).
Does this affect your current drug testing policy? No. The drug testing that your company and millions of employers around the world have been doing for decades was never based on the assumption that the user was doing something illegal under a criminal law – instead it has always been based on SAFETY and the efficiency of your workforce. No one who has failed an employment drug test has been reported to the police or charged criminally. Nothing changes after I-502 or Amendment 64 as far as workplace drug testing. You may be interested in reading this synopsis and legal review “Don’t Fear The Reefer: Legalization of Marijuana To Have Little Effect on WA Employers”
Here are some additional reasons why you should continue prohibiting the use of marijuana and continue drug testing for marijuana (THC):
1. If you are subject to the federal drug testing requirements – nothing has changed. The Dept. of Transportation, Department of Defense, Department of Energy drug testing programs still require that you prohibit the use of marijuana and continue to test for marijuana.
2. If you have or want to be eligible to receive federal contracts or grants, the Drug-Free Workplace Act of 1988 still applies to you – and this includes most state and local government agencies, school districts, etc. This Act requires that your written policy must prohibit ALL illicit drug use as defined by the federal Controlled Substance Act. There is no exception for “medical marijuana” or any other marijuana use. The Drug-Free Schools and Communities Act of 1989, declares that colleges or schools that allow illegal drugs on campus face the possibility of losing federal funding. Many different states have similar laws which will apply to you if you want to work or do business in those states.
3. Smoking pot doubles the risk of serious crashes.”Cannabis consumption – Motor Vehicle Collision Risk”
4. Because you are concerned about liability and risk management, you are probably aware of various courts and Supreme Court decisions that say an “employer can be held liable in such cases if it failed a duty to prevent foreseeable injury”. So, since everyone knows that marijuana use can severely impair, if you allow these people to work at your company or on your job sites, expect to be held responsible for injuries, accidents, and deaths that they cause – basically it’s the same logic as to why you don’t let someone work under the influence of alcohol, even though alcohol is a legal drug.
Every employer should have a drug and alcohol policy. The responsibility to provide a safe workplace and the potential liability from negligent hiring and retention require that employers be aware of and take steps to control work-related substance abuse. The components of a drug-free workplace program, especially drug testing of employees, may raise legal issues with a risk of legal liability if conducted improperly or in violation of federal, state or local laws. Recommendations given are intended to provide reasonably accurate and authoritative information in regard to the subject matter covered. It is furnished with the understanding that we are not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.
This article was written reprinted with permission by Tom Pool, Executive Director, Drug Free Business. If you would like more information about drug testing, please contact me at email@example.com
A couple of months ago, Fully Effctive Employees held a free one hour seminar on Medical Marijuana and the Workplace in Bellevue, Washington. We invited guest speaker, Laurie Johnston, an employment attorney and partner at Gordon and Rees, P.S. to speak about the State law which was passed by the Supreme Court of Washington in June 2011, referring to the Medical Use of Marijuana Act (“MUMA”). MUMA does not require private employers to accommodate an employee’s off site use of medical marijuana. The Court further held that MUMA does not create a public policy that would support a claim for wrongful discharge. What this means is that employers CAN terminate an employee who tests positive for marijuana even if it is used for medical purposes.
What this means is that employers CAN terminate an employee who tests positive for marijuana even if it is used for medical purposes. While medical marijuana is readily available and many
employees are using this option to argue the cause for a positive drug test, it is still an illegal drug according to Federal law and if an employer does have a drug testing policy, the employer is not required to accommodate for this drug. There is no legal prescription for medical marijuana- a letter from a doctor or what is commonly referred to as a “green card” just states that an individual can use a certain amount for a particular diagnosis which can range from chronic, severe pain to minor skin ailments or anxiety. Marijuana is not approved by the FDA because it cannot be regulated and the carcinogens from the smoke and other additives cannot be evaluated as medically safe.
Laurie Johnston advises that it is wise to treat all employees the same, regardless of whether or not they work in a safety sensitive position. If an employee who works in a “safety sensitive position” tests positive for marijuana due to “medical reasons” refuses to cease use, an employer should treat him that same as someone in a desk job, even though safety may not be an issue. Ms. Johnston pointed out that if the employer asks the employee in the desk job to run an errand during company time and that person gets into an accident and it can be proved he has marijuana in his system, there could be liability for the employer. In addition, there may be other protected class or discrimination claims. Ms. Johnston recommends that if an employer chooses to keep an individual who uses medical marijuana solely because the position he works in is not a safety risk, there should be clear policy and documentation to that effect. The employer may be subjecting itself to increased risk and the potential for lawsuits by other employees.
It should be noted that marijuana stays in a person’s system for a long time and someone who has been using it for a while may have to be off of work for up to thirty days until it no longer shows on a drug test. Due to the cut-off levels that the lab uses, trace amounts of the drug can show up but not be considered a positive drug test, therefore “passive inhalation” or second hand smoke would not create a positive drug test. In addition, if the employer is using a SAMSHA certified lab (which they should use) rather than instant tests purchased on line or at a drug store, any substance that one ingests to “pass the test” will result in an “adulterated” sample which would be considered a positive. This is no way to “beat” a drug test if the test is done properly.
While there may be legitimate situations in which medical marijuana is an appropriate option for a physically ill person such as someone who is suffering from a terminal disease or severe pain. In these situations, the person would not be in the workforce or causing a safety risk to himself or others. If employers choose to drug test, they should be aware that they will eventually have an employee who tests positive for medical marijuana and a clear policy and training of all personnel is vital.
We will disucss how the EAP works with employees who test positive for drugs in another post. Stay tuned!
If you have questions about drug testing in your workplace, feel free to contact us.