Marijuana & Employment Law — A New Frontier?
Washington made history last November when voters approved the recreational use of small amounts of marijuana for adult users. The ballot initiative which passed eight months ago makes Washington and Colorado the only places to allow such use under state law. Eighteen other states and the DIstrict of Columbia allow marijuana use for medical purposes. Considering that many employers require drug testing for employees, the legal status of the drug in question may affect different employment law issues for Washington employees. Because the legalization is so new, we will likely see various legal issues play out over the next few years
Washington State Marijuana Rules
As discussed in a recent AP story on the state of the current law, The Liquor Control Board is still ironing out the details of rules to guide the process. There will be a limit to the total number of retail outlets and many different requirements on those retailers–from warning labels to mandatory store security systems. None of this will preclude private individuals from growing their own marijuana plants.
Under Washington law, those who are twenty one years old and above are allowed up to an ounce of dried marijuana and larger quantities of pot-infused solids and liquids (i.e. tea and brownies).
All told, the Liquor Control Board still has many more details to sort out before the finish their complete list of draft rules. Much could change in the interim, but observers expect everything to be in place by early next year (2014), at which point legal sale will officially begin.
Adding to the uncertainty is the fact that marijuana is still illegal under federal law. The Controlled Substances Act does not allow any use, and the U.S. Attorney General has many different options to attempt to enforcement federal law which runs counter to state rules. That may include suing to prevent the state regulatory scheme.
Employment Law Issues
So what does this all mean for the employee-employer relationship? Most notably, many may be asking: can employers still drug test employees and/or prohibit the use of marijuana in the workplace?
The Washington medical marijuana law, approved in 1998 specifically indicates that employers can prohibit the use (or possession) of the drug in the actual workplace. However, nothing else is indicated explicitly regarding the employers ability to limit employee marijuana use in general
Conversely, the recreational marijuana law does not include specific information about the effect of the matter on the workplace. However, is it unlikely that the rules following recreational legalization will alter those currently in place regarding medical marijuana. In other words, most observers speculate that the law will not impact an employer’s right to prohibit use or possession in the work environment. Similarly, officials from the Liquor Control Board have already indicated that they do not expect the law will prevent employers from drug testing workers.
Of course, many other questions will need to be hashed out in the coming months and years, including whether one can be denied employment specifically because of drug testing results indicating use of the legal substance or whether disciplinary action can be taken against an employee for such use. As always, talking with an experienced employment law attorney is the single best way to understand how the law might apply in your case.