July 14, 2014
Sparks are flying in Washington. Last Monday the Washington State Liquor Control Board issued the first licenses, which allowed for legal marijuana sales to begin on Tuesday. By Wednesday there were news and social media reports that the "first buyer" in Spokane had lost his job as a security guard (later reports are that his employment was not terminated). And on Thursday KGW interviewed me to ask about all of this.
Bottom-line question: What does this mean for employers in Washington and Oregon?
"Lawyerly" answer: Nothing and everything. It all depends. Let's look at three issues.
Issue #1: Does an employer have to modify its existing drug policy?
No (but see below). The short answer is that Washington's new personal use law does not require an employer to modify its existing drug policy. While employers understandably have worried that they may be forced to permit marijuana use or modify drug policies, the new law does not express or imply job protections for applicants or employees. Thus, Washington employers are free to maintain or adopt drug and alcohol policies that prohibit the use or possession of marijuana in the workplace and that prohibit being under the influence of marijuana in the workplace. Moreover, Washington employers may continue to discipline employees for violations of their drug and alcohol policies.
Remember, Washington's Medical Use of Marijuana Act, which has been on the books for a number of years, is similarly silent on its workplace implications. Interpreting the MUMA in 2011, the Washington Supreme Court held that it does not require employers to accommodate medical users and does not create any other employment protections for applicants or employees. The same analysis ought to apply with respect to the new personal use law.
Issue #2: Should an employer review its existing drug policy?
Yes. It is a best practice to periodically review all policies. The changing laws related to marijuana make this a particularly good time for employers to review their drug policies, and specifically the manner in which the policy defines the "drugs" it prohibits. In the past, "illegal drugs" included marijuana; however, this is less clear now that various states permit medical and personal use marijuana. Thus, an employer is going to want to be sure that "drugs" and other defined terms match the employer's intent. If the intent is to prohibit marijuana, the simplest course might be to say that directly.
Issue #3: Is purchasing marijuana at a dispensary a violation of a drug policy?
No. I am hard-pressed to think of a situation in which lawful off-duty conduct would be a policy violation. An employee who is legally eligible to purchase marijuana in Washington, and who does so in his/her off-duty time, should not be in violation of an employer drug policy by virtue of that purchase.
However, those kinds of doobie-ous comments about such a purchase may trigger the reasonable suspicion drug testing provision in a drug policy. For example, assume that after purchasing marijuana in his/her off-duty time the employee says that s/he is going home to test it out. When that employee reports for work the next morning it is possible that his/her employer will have a reasonable basis for suspecting a policy violation and for requiring the employee to submit to a drug test.
As I have said before, in states allowing medical or personal marijuana use, the number of state residents using marijuana will likely increase. High tax revenues in Washington and Colorado seem to bear this out. In turn this will mean an increase in the number of marijuana users who are employed or seeking employment, and an increase in the number of instances of reasonable suspicion (and the number of positive tests, as my colleague Fran Barnwell recently explained at a Bullard Law HR Workshop.) With this in mind, employers ought to make sure they understand the reasonable suspicion provisions in their drug policies and update them where necessary.
We will be continuing to track this issue. Please feel free to share your stories or send us your questions.
The Bullard Edge