Don't Fear The Reefer: Legalization of Marijuana To Have Little Effect on WA Employers

by Fisher Phillips
Contact

On November 6, 2012, Washington became a national trailblazer when voters approved a state initiative legalizing the recreational use of marijuana (Colorado passed a similar law the same day). As of December 6, 2012, it will no longer be illegal for adults over the age of 21 to possess one ounce of marijuana. The good news for employers: the new law does not change employers’ rights in any way, and zero tolerance policies may still be enforced.

Background

Washington’s new law not only decriminalizes the recreational use of marijuana, but also the sale of the drug. It authorizes the state’s Liquor Control Board to establish rules for state-licensed stores to sell marijuana. The law also establishes impairment levels for the application of state DUI laws. But there are likely legal roadblocks ahead. As Colorado’s governor cleverly summarized: “don’t break out the Cheetos” just yet – federal law still says that marijuana is illegal. Although the U.S. Justice Department has not yet taken any action against these new laws, they have reminded potential partakers that pot remains illegal under federal law, leaving open the prospect of suing the state to block the enactment of the law.

What Effect Could This Have On The Workplace?

The new law does not contain a provision that would protect employees’ use of the drug at work, nor does it provide individuals comfort should they show up for work with the drug remaining in their system. However, it could also mean that some employers will find themselves in a discussion with an employee about the application of workplace policies. Specifically, some employees may point out that the law sets a standard for marijuana “impairment” (based on how much THC, the drug’s active ingredient, is in the bloodstream) and may claim that they should not be in violation of workplace policies if they are below “impairment” levels set by law.

This is especially true because THC drops below the legal impairment level within hours, although certain marijuana remnants can show up in a drug test days after use. More enterprising employees may even claim that marijuana use should no longer be a violation of company policy since it is now legal under state law (ignoring the fact that employers have the right to prohibit the use of legal items at work, such as alcohol). Nevertheless, despite these anticipated arguments, employers are in no way required to amend their workplace drug and alcohol policies to accommodate the new law.

Nor does the law change a 2011 Washington Supreme Court decision which held that employers are permitted to discipline or terminate medical marijuana users who violate workplace drug policies, and are not required to accommodate an employee’s use of medical marijuana. We reported on that ruling when it was handed down in June 2011, and a Legal Alert summarizing the case may be accessed here.

What Does This Mean For You?

Employers continue to have legitimate reasons for implementing and applying policies prohibiting employee use of marijuana at work, and requiring that employees not have traces of marijuana in their system while at work, even if the substance is legal. And marijuana is still considered illegal under federal law. Employers should continue to apply their zero tolerance drug and alcohol policies, drug testing policies, and prohibitions against the possession of the drugs on company property. To avoid any confusion as to how your workplace policies apply to recreational use, we recommend that your policy be issued in writing to applicants and employees It should clearly indicate that the use of marijuana – whether for recreational or medical purposes – is prohibited just as is any other controlled substance. Further, your policies should prohibit any detectable level of drug in an employee’s system to avoid any confusion with the state’s “impairment” standard.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fisher Phillips | Attorney Advertising

Written by:

Fisher Phillips
Contact
more
less

Fisher Phillips on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!