Initiative 502: Marijuana Goes Mainstream, but Not in the Workplace

by Jennifer A. Parda

Today is the day Washington’s voter-approved Initiative 502 (“I-502”) goes into effect, which decriminalizes certain cultivation, sale, possession, and use of marijuana. It is clear that I-502 will drastically impact law enforcement in Washington State where marijuana use is concerned. I-502 also authorizes the Washington State Liquor Control Board to regulate and tax marijuana, thereby requiring the creation and implementation of new tightly-regulated and licensed systems (similar to those used to control alcohol). Despite all these changes, employers may happily take note of one area that I-502 does not touch: the workplace. I-502 does not legalize marijuana use in the workplace and is silent on whether or how the workplace and/or employment relationships may be impacted.

I-502 Does Not Impact an Employer’s Authority to Enact Drug Policies and Prohibit Marijuana Use

Despite passage of I-502, employers retain complete authority to enact drug policies prohibiting marijuana use both in and outside the workplace (subject to any applicable notice requirements and/or collective bargaining restraints). Private sector employers in Washington are generally free to require that their employees consent to drug or alcohol testing as a condition of continued employment. Public employers may require drug tests subject to the same Constitutional restraints that impacted them prior to I-502’s passage.

Further, although I-502 decriminalized the use of marijuana for recreational use under certain circumstances under Washington State law, marijuana consumption remains illegal under federal law. Additionally, the Federal Drug-Free Workplace Act (“DFWA”) requires covered contractors (currently, those with federal contracts worth $100,000 or more) and grantees receiving any amount of federal funds to certify to the appropriate federal agency that they are providing a drug-free workplace, which prohibits employee use of marijuana. Similarly, Federal Department of Transportation drug and alcohol testing regulations (requiring certain commercial motor vehicle operators to be tested for alcohol and drugs) do not authorize the use of marijuana for any reason.

I-502 Does Not Legally Obligate Employers to Permit or Otherwise Accommodate Marijuana in the Workplace

Despite the fact that I-502 decriminalizes marijuana for recreational consumption under state law, it does not require employers to permit employee marijuana use or to otherwise accommodate medical marijuana use. To the extent that an employee requests a reasonable accommodation for legally-authorized medicinal marijuana use, such a request would be governed by the Medical Use of Marijuana Act (“MUMA”). Notably, however, the Washington State Supreme Court previously held that MUMA does not protect employees from discharge, even in cases of authorized medical marijuana use and/or where that use is not on the employer’s worksite and is otherwise on the employee’s own time. See Roe v. TeleTech Customer Care Management, 171 Wn.2d 736 (2011). Washington courts would likely use the Roe decision as a basis for deciding employment-based challenges to terminations for recreational marijuana use under I-502. Under the Washington Supreme Court’s reasoning in Roe, it seems almost certain that any court considering the issue would conclude that I-502 permits an employer to continue to discipline or discharge an employee, or refuse to hire an applicant, based on his/her recreational marijuana use.

Practical Policy Considerations

Because of the stark contrast in the manner in which state and federal law treat marijuana use, zero-tolerance drug use policies should make clear that illegal drugs include those prohibited by both state and federal law. In contrast, employers that wish to enforce less-than-zero-tolerance policies should implement or revise current policies to: (1) treat marijuana use similar to alcohol use; (2) prohibit on-the-job impairment and on-premises possession; and (3) provide for reasonable suspicion testing.

If you have questions regarding I-502 or require assistance in reviewing and revising your existing policies and practices, please contact Jeff James or Jennifer Parda.

This Employment Law Note is written to inform our clients and friends of developments in labor and employment relations law. It is not intended nor should it be used as a substitute for specific legal advice or opinions since legal counsel may be given only in response to inquiries regarding particular factual situations. For more information on this subject, please call Sebris Busto James at (425) 454-4233.