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March 2014

Employees Can Inhale But What Should Employers Do?

Update on how the legalization of marijuana in Washington impacts employers and their drug testing policies.

What is and is not legal under Initiative 502?

Washington’s Initiative 502 (“I-502”) decriminalized marijuana possession and use making recreational marijuana legal.  Since the passage of I-502 there have been many misunderstandings regarding the impact of this law, particularly that employers can no longer drug test for marijuana and that this law approved public use of marijuana.  In effect, I-502 allows those who are 21 years and older to possess any combination of one ounce of marijuana, 16 ounces of marijuana in solid edible form, or 72 ounces in liquid form.  Washington will regulate marijuana similar to alcohol.  Marijuana must be purchased from a state-licensed retailer and home grown marijuana for recreational use or for sale remains illegal.  However, despite what many may understand under the new law, it is unlawful to open or consume a package of marijuana or marijuana product in view of the general public.  It is also unlawful to operate a motor vehicle under the influence of marijuana.  The regulations set a per se DUI limit of “delta-9” THC levels at greater than or equal to 5 nanograms per milliliter of blood.  Most importantly for employers, the regulation is silent as to whether employers may continue to drug test for marijuana, and whether an employee may be terminated for on-site or off-site premises use of marijuana.

Legalized Marijuana and Employer’s Drug-Free Workplace Policies

The obvious question that is raised with the legalization of marijuana is whether businesses can enforce drug-free workplace policies and to continue drug testing for marijuana.  When Colorado enacted Amendment 64 to Article 18 of the state’s constitution legalizing marijuana, the legislation included a provision specifically stating the law does not require employers to permit or accommodate marijuana use and does not affect the ability of employers to have policies restricting the use of marijuana.  However, I-502 is silent on the affects of legalized marijuana and businesses drug-free workplace policies.  How this new legislation will affect Washington employers and businesses will be left to the courts.  But, there is some case precedence that can be a guideline for employers. 

Employers can have some assurance that so long as marijuana use remains illegal under federal law that a business that receives federal grants, funding or employ federal contractors must comply with federal regulations can continue to drug test for marijuana and enforce its drug-free workplace policies.  Businesses that are not federally regulated can also take some solace in earlier cases decided under Washington’s Medical Use of Marijuana Act (“MUMA”).  See RCW 69.51A et seq.  In a benchmark case, Roe v. Teletech, 171 Wn.2d 736 (2011), the Washington Supreme Court made it clear that under MUMA there was no public policy right requiring employers to accommodate medical marijuana use even when it is outside of the workplace, and dismissed plaintiff’s wrongful termination claim. 

While it appears to be clear cut, employers should be wary of a false sense of security.  The cases where employers have prevailed in enforcing the drug policy the favorable factors included:  (1) a clear and unambiguous drug-free policy; (2) marijuana was illegal except for medical use; and (3) the employment was “at-will.”  See e.g., Roe; Emerald Steel Fabricators, Inc. v Bureau of Labor & Industries, 348 Or. 159, 230 P.3d 518 (2010).  Conversely, where the employee has been a union employee and could only be terminated for “just cause” there has been a different outcome.  See Seafreeze Cold Storage v. Teamsters Local No. 117 (Dec. 11, 2011).  In Seafreeze, an arbitrator overturned a union employee’s termination after he was terminated when during a random drug test cannabis metabolites were found in his urine.  The arbitrator overturned the termination because the employer had no written drug testing policy, the employee could only be terminated for “just cause,” and there was no evidence that the employee was impaired on the job.  The arbitrator found there was no nexus between the employee’s drug test and actual impairment and compared the situation to an employee drinking excessively on a Friday night and returning to work sober on Monday morning.  The arbitrator’s decision makes it clear that with public opinion shifting on marijuana use if a business does not have a clearly written drug-free policy that is communicated to the employees the outcome could be different.  

Another factor employers must consider is that the Roe and Emerald Steel courts focused on the fact that marijuana remains illegal under federal law.  In Roe, the court specifically found that there was no public policy permitting marijuana use particularly when the federal law preempts state law.  Id. at 597.  However, in August 2013, the Obama Administration announced it would not use the federal preemption power to prevent the implementation of Colorado and Washington’s marijuana laws provided that the states developed a strong regulatory structure.  Based on the federal government’s position that it will not challenge the state’s legalization of marijuana, it is possible that Washington courts will revisit Roe and articulate a more clearly expressed public policy making it more difficult for employers to terminate employees or refuse to hire applicants because of off-site marijuana use.

Drug Testing

The legalization of marijuana does not mean that businesses should abandon their drug-free workplace policy or stop drug testing.  However, employers who have drug testing policies must ensure that the policy clearly and unambiguously addresses illegal substances and legal substances, including marijuana and alcohol.  Employers may want to consider distinguishing when different substances are tested, such as testing for marijuana and alcohol after accidents or upon reasonable suspicion.  Employers may also want to reconsider how to conduct drug tests for marijuana.  Blood tests are a much more accurate indicator for active THC than a urine sample which identifies the past 28 days of the employee’s use.  At this time, Washington law enforcement has only provided guidance as to the level of THC in blood that constitutes being “under the influence.”  There is no “under the influence” limit for the presence of marijuana in urine, hair, or sweat.  

Medical Marijuana – Do I have to accommodate?

In Roe, the Washington Supreme Court unanimously concluded that medical marijuana use, either on-site or off-site, did not have to be accommodated by employers.  On July 22, 2011, MUMA was amended to include a provision stating:

Employers may establish drug-free work policies.  Nothing in this chapter requires an accommodation for the medical use of cannabis if an employer has a drug-free work place.  

RCW 69.51A.060 (6).  At the time of Roe, the Washington State Human Rights Commission issued a statement that based on Roe and the federal law, the Human Rights Commission will decline to investigate any claims of discrimination involving the use of medical marijuana.  Since the passing of I-502, the Human Rights Commission has not issued another statement.  Therefore, until the Human Rights Commission states otherwise, employers are not required to accommodate employees who use medical marijuana by exempting them from the company’s drug-free workplace policies.  Rather, employees who have drug and alcohol addictions or are in treatment programs are considered disabled and protected under state and federal discrimination laws.  The reasonable accommodation in these situations is not to allow the drug and alcohol use on the premises but rather to allow the employee time off to get treatment or attend meetings. 

Conclusion –What is an employer to do?

The marijuana and drug-testing laws will continue to evolve. As public opinion shifts across the country favoring legalization of marijuana, and regulating marijuana more like alcohol, it is highly likely that employers will be more scrutinized for drug testing employees for marijuana including at-will employees.  In addition, with the federal government’s decision not to challenge I-502, the courts may begin to find an expressed public policy which will make it more difficult for employers to discipline and/or terminate employees for off-duty marijuana use. 

Therefore, employers must ensure there is a nexus between the discipline and/or termination for employees who are under the influence of marijuana at work and may want to consider taking the following action:

·    Reviewing current drug-free policies to ensure they are clear and unambiguous;

·    Reevaluate the circumstances when the employer will conduct pre-employment, random, or for cause
     drug testing;

·    Reevaluate what form of drug testing will be conducted for marijuana use; and

·    Educate employees on the parameters of MUMA and I-502.

Cannabis, Hemp & CBD

Sarah N. Turner

Cannabis, Hemp & CBD
Employment Law