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The Marijuana Legalization Law and Public Employer Issues


December 21, 2012 by Pat Mason
Category: Marijuana

Many questions have emerged concerning the impact and scope of Washington’s voter-approved marijuana law, Initiative 502 (I-502). However, the effect of the initiative in regard to the workplace and personnel policies should be minimal, because the initiative does not change Washington employer’s rights. Keep in mind that I-502 does not legalize marijuana use in the workplace, and that marijuana use and possession remain illegal under federal law.

Some of the most commonly-asked questions relating to employment law issues are addressed below:

Q:  May a public sector employer require preemployment drug testing for certain job applicants, including for marijuana?

A:  Yes, on the same basis that preemployment drug testing is allowed now. The authority of public employers to require preemployment drug testing has not been changed by the enactment of I-502.

Washington courts have held that, while it is not permissible to implement a general preemployment drug testing program that covers all positions, it is allowed for “safety sensitive” positions, such as police and fire, and for positions requiring a commercial driver’s license (CDL).

Q:  May a local government adopt a random drug testing policy for all employees?

A:  No, with some exceptions. As with preemployment testing, Washington courts have held that random drug testing of public employees is allowed only in limited circumstances, such as for “safety sensitive” positions and positions that require a CDL. Other employees may be tested on a “reasonable suspicion” basis only.

Q: Can employers prohibit marijuana use during work hours as they do for alcohol?

A: Certainly. Similar to policies regarding alcohol, employers retain authority to prohibit marijuana use in the workplace and may discipline employees for violations.

Q: How does the law affect CDL holders?

A: Federal Department of Transportation regulations regarding CDLs prohibit the the use of marijuana, which remains illegal under federal law. These regulations are followed by the state Department of Labor, which regulates certain commercial motor vehicle operators in Washington State. This means zero tolerance for marijuana use by CDL holders.

Q: What about federal Drug-Free Workplace Act (DFWA) requirements?

A: The Federal Drug Free Workplace Act prohibits employee use of marijuana. So jurisdictions covered by the DFWA, which includes grantees of federal funds in any amount, must adopt a zero tolerance policy for use of illegal drugs, including marijuana.

Q: What about use of medical marijuana by employees?

A: Initiative 502 does not change the legal landscape regarding use of medical marijuana use by employees. As decided by the state supreme court, employers are not required to permit or accommodate medical marijuana use by employees. See Roe v. TeleTech Customer Care Management, 171 Wn.2d 736 (2011). In that case, the plaintiff was authorized to use marijuana medicinally under the Medical Use of Marijuana Act (MUMA), but her job offer was rescinded after she tested positive for marijuana. The court held that MUMA does not prohibit an employer from discharging an employee for medical marijuana use, nor does it provide a civil remedy against the employer.

Q: How should local government personnel policies be updated?

A:  Most local government personnel policies will not need much revision, if any. If a zero tolerance policy is necessary for all employees because your agency receives federal funding or simply because that is the policy your agency considers it best to maintain, personnel polices should be reviewed to make sure they cover any drugs that are illegal under state or federal law and that they specifically identify marijuana as a prohibited drug.

That being said, where a zero tolerance policy is not necessary because of federal law considerations, an agency may consider whether, for non-safety sensitive positions, to treat marijuana use like alcohol use, with an impairment or “under the influence” standard for discipline.

Q: How will this affect union collective bargaining negotiations?

A: It is likely this will be an issue in collective bargaining negotiations. There is a duty to bargain on drug testing/changes to drug testing for union employees.

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

About Pat Mason

Pat is recognized throughout Washington State as a highly trusted resource on municipal law. He regularly counsels local governments on public records, open public meetings, and just about any other municipal issue that comes up.

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