I-502 – When the Smoke Clears, Nothing Changes in the Workplace

by Perkins Coie
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On November 6, 2012, Washington state voters passed Initiative 502 (I-502), making it legal under state law for people in Washington to consume marijuana for recreational use. The intent of I-502 is to make the production and sale of marijuana a “tightly regulated, state-licensed system similar to that for controlling hard alcohol.” The new law focuses on the regulation of the production and sale of marijuana and establishes driving under the influence standards. It also provides for new taxes and explains how those tax revenues will be distributed. As with alcohol, it will be illegal to consume marijuana in public. The law will take effect on December 6, 2012, which means that adults over the age of 21 will no longer be prosecuted under state law for possessing limited amounts of marijuana. However, nothing in the initiative changes any employment laws in Washington.

The first signs indicating the passage of I-502 came with the decisions of the prosecutors' offices in King, Pierce and Clark counties to dismiss all pending misdemeanor marijuana possession charges, while Governor Christine Gregoire met with federal officials to clarify the federal government’s position on the initiative.

Marijuana Remains Illegal Under Federal Law and Can Be Prohibited by Employers and Collective Bargaining Agreements

Although individuals will be allowed to consume marijuana for recreational use in private under state law, marijuana consumption remains illegal under federal law. Federal contractors and employers receiving federal funding will want to avoid any policies that allow marijuana to be consumed on the premises in violation of federal law. Loss of federal funding and even federal prosecution could result from an overenthusiastic embrace of marijuana use in the workplace.

Additionally, many employers have drug-free workplace policies and/or collective bargaining agreements that prohibit the use of alcohol and drugs (including marijuana) in the workplace. Marijuana consumption will likely continue to be prohibited under such policies and agreements. Some of Washington's largest employers have publicly stated that marijuana is still prohibited under their employment policies and employees who consume marijuana will be subject to discharge.

Employers Do Not Have to Accommodate Medical Marijuana in the Workplace

Despite the fact that marijuana will soon be legal for recreational consumption under state law, I-502 has no impact on the employment relationship or an employer’s duty to accommodate medical marijuana in the workplace. First, I-502 applies to recreational use and does not contain any language relating to employment. Second, to the extent that an employee requests a reasonable accommodation, such a request would be a medical request and governed by the Medical Use of Marijuana Act, Chapter 69.51A RCW (MUMA). In 2011, the Washington Supreme Court held in Roe v. Teletech that MUMA did not protect employees who were discharged for consuming marijuana for medical purposes outside of the workplace; MUMA provides only an affirmative defense to criminal prosecution.

In Roe, the plaintiff “Roe” – who filed suit under a pseudonym because marijuana is illegal under federal law – suffered from debilitating migraine headaches and was prescribed marijuana in compliance with MUMA. Roe only ingested marijuana in her home. A few months later, Roe was offered a position with TeleTech contingent on her passing a drug test. After Roe tested positive for marijuana, TeleTech refused to make an exception to its drug policy to allow for medical marijuana use and terminated Roe’s employment. Roe sued claiming that TeleTech terminated her employment in violation of MUMA and the public policy underlying MUMA.

The Washington Supreme Court held that the “language of MUMA is unambiguous—it does not regulate the conduct of a private employer or protect an employee from being discharged because of authorized medical marijuana use.” Moreover, MUMA expressly states that “nothing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment, in any school bus or on any school grounds, in any youth center, in any correctional facility, or smoking medical marijuana in any public place[].” RCW 69.51A.060. Furthermore, the court stated that employers are still governed by federal law and noted that “it would not be a reasonable accommodation of a disability for an employer to violate federal law, or allow an employee to violate federal law, by employing a person who uses medical marijuana.”

Conclusion

In the end, I-502 decriminalizes under state law the possession and consumption of marijuana for recreational use. But, that is all it changes. Employers are still free to maintain a broad prohibition on marijuana, including marijuana consumption outside of the workplace or for medical purposes—subject, of course, to the employers’ other policies and practices (and to possible challenges from unions, who may be eager to test an arbitrator’s view as to whether the new law affects “just cause” principles). Given all of the attention I-502 is gathering, employers that prohibit marijuana use may want to reiterate their policy to current employees and applicants.

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.

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