Workplace Drug Policies and Legal Marijuana in Washington

Washington’s voter-approved Initiative 502 (“I-502”) has gone into effect and the first state licensed marijuana was recently sold in Spokane, WA. The first sale, made to Mike Boyer, made headlines nationally, as Boyer’s employer viewed him on television purchasing  marijuana and reportedly contacted Boyer, informing him he had twenty-four (24) hours to take a drug test or he would be terminated. [1] Boyer was later reinstated when his employer verified that he was off duty at the time of purchase and the company’s policy only prohibited being under the influence on the job.

Although I-502 decriminalizes certain cultivation, sale, possession, and use of marijuana in Washington state, it does not  legalize marijuana use in the workplace and is silent regarding how the workplace and/or employment relationships may be impacted by legal marijuana. Uncertainty regarding the impact of I-502 on employment relationships, coupled with the fact that marijuana use remains illegal under federal law, creates a dilemma for employers in setting workplace policies.

Generally speaking, public employers are permitted to perform drug testing on an employee when a “reasonable suspicion” has developed that the employee is using a controlled substance. See, e.g. Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665-66 (1989); see also WAC 357-37-200.  Private employers, by contrast, are not subject to constitutional restraints on drug testing, but may be limited by existing workplace policies, statute, or common law.

Washington’s recent change in marijuana policy presents an ideal time for employers to clarify or revise existing drug use policies. By way of example, an employer with a zero-tolerance drug use policy may need to make clear that illegal drugs are those prohibited by state and federal law. Similarly, an employer may elect to revise current policy to prohibit impairment on the job and possession of marijuana in the workplace.

If you have questions concerning the impact of I-502 on your business, a Spokane Business Attorney can help. Wolff, Hislop & Crockett prides itself on being a trusted legal resource for businesses in the Spokane, Spokane Valley, and Liberty Lake areas and beyond. Contact us today for a consultation.

Image:  Freedigitalphotos.net

 


[1] Kim, Clare, First Person to Legally Buy Weed in Spokane Gets His Job Back, MSNBC Official Website, Available at: http://www.msnbc.com/the-last-word/first-person-legally-buy-weed-spokane-wa-gets-fired.

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