Decriminalization of Marijuana – Impact on Washington Employers?

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[authors: Mark W. Berry, Mary E. Drobka, Devin M. Smith]

On Nov. 6, 2012, Washington voters approved Initiative 502 (“I-502”), which decriminalizes certain cultivation, sale, possession, and use of marijuana. The new law—which becomes effective Dec. 6, 2012—establishes a complex licensing, distribution, and tax scheme for recreational marijuana use. Users over the age of 21 will be able to possess and use small amounts of marijuana (less than an ounce). Similar to Washington’s alcohol laws, I-502 prohibits smoking marijuana in public, criminalizes driving under the influence of marijuana, and attempts to insulate children from widespread exposure to marijuana advertising and distribution.

Despite the sensational headlines regarding I-502, it may have less impact on Washington employers’ drug policies than they might assume. In the wake of I-502, personal marijuana use of any kind remains illegal under federal law. The federal Controlled Substances Act continues to list marijuana as a Schedule I narcotic, along with heroin, LSD, ecstasy, and peyote. Passage of I-502 does nothing to alter the enforcement regime for any federal agency—including the Justice Department, Drug Enforcement Agency (“DEA”), Department of Transportation (“DOT”), and others. Indeed, some commentators believe that the Justice Department may shut down Washington’s legalized marijuana experiment entirely.

Even aside from federal law, I-502 itself does not require modification of current employment practices. It only affects criminal enforcement. It is silent regarding potential protections afforded to marijuana users in the workplace, including employers’ zero-tolerance, drug-free workplace, and drug-testing policies.

At best, marijuana will become a legal drug, just like alcohol. While alcohol consumption is plainly permissible under Washington law (with enumerated exceptions), employers may require alcohol testing, discipline for policy violations, and regulate alcohol use and its effects in the workplace. The same holds true for marijuana, even though personal use has been decriminalized under state law.

Prior Washington court decision involving medical marijuana

While I-502 has not been tested by the courts, the Washington Supreme Court last year decided a case that foreshadows its likely neutral impact on Washington employment policies and practices. In Roe v. Teletech Customer Care Management, the Court held that Washington’s Medical Use of Marijuana Act (“MUMA”) does not protect medical marijuana users from adverse hiring or disciplinary decisions under an employer’s drug testing policy. In broad strokes, MUMA permitted qualifying patients with prescriptions to possess, grow, and use marijuana. Plaintiff Roe was an authorized medical marijuana user. Defendant TeleTech offered her a customer service position, contingent on a passed drug test. Roe tested positive for marijuana, and TeleTech rescinded the job offer based on the failed result. Roe contended that as the holder of a prescription authorizing her to use medical marijuana, the rescinded offer constituted wrongful termination in violation of public policy. The Court disagreed, holding that MUMA did not protect employees from discharge, even for authorized medical marijuana use. The Court found that “MUMA does not prohibit an employer from discharging an employee for medical marijuana use,” even when the marijuana use was offsite and on the employee’s own time.

Like MUMA, I-502 does not prohibit or require employers to take any particular action regarding marijuana use. It is silent regarding the initiative’s impact on the workplace. It merely decriminalizes marijuana use in prescribed circumstances—none of which pertain to employment. Washington courts would likely use Roe as a template for deciding employment-based challenges to I-502. Consequently, I-502 would very likely permit an employer to continue to discipline or discharge an employee, or refuse to hire an applicant based on marijuana use.