While the passage of Initiative 502 decriminalizes, regulates, and taxes the recreational use and sale of marijuana in the state of Washington, marijuana use and possession remains illegal under federal law.  The new law does not grant new rights to employees with regard to drug use, and zero tolerance policies may still be enforced.  The new law does not contain a provision that would protect employees’ use of the drug at work, nor does it provide individuals protection if they have traces of the drug in their systems while on the job.  In fact, Intuitive 502 is largely silent about its effect on the workplace.

However, the passage of Initiative 502 represents another step in the continuously changing legal landscape regarding marijuana.  When medical marijuana laws started emerging, they sparked lawsuits across the country as employees challenged terminations due to medical marijuana use.  Intuitive 502, while not granting additional rights to employees, is likely to spawn similar lawsuits.

It’s expected that Washington courts will likely rely on its earlier decisions regarding medical marijuana to reject legal challenges to employee terminations based on Initiative 502.  However, as defense costs can be considerable, employers should take steps to avoid becoming the next “test case” in the ongoing evolution of this area of law.

Here are some steps that Washington employers should consider taking:

• If you don’t already have a written policy addressing illegal drug use in the workplace, consider adopting one.
• If you do have a written policy addressing illegal drug use in the workplace, revisit it in light of this new law.
• Any written policy needs to clearly define “illegal drugs” making it clear that if a drug is illegal under either state or federal law, the employer will consider the drug illegal.
• Consider if you want to include drug testing as part of the policy.
• Multi-state employers should ensure that their policies comply with state laws that regulate testing, such as Alaska and Idaho, to take advantage of the additional protections that those laws provide.