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 audreyr@fee-eap.com

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