Blog written by Lauren Burgon, Equinox Business Law Group
With all the hoopla surrounding the opening of Washington’s first legal retail marijuana stores right after Independence Day, many Washington employers are wondering how and if they should be amending their policies regarding drug use.
While the recreational use and sale of marijuana in the state of Washington has been decriminalized under state law, marijuana use and possession remain illegal under federal law. The new law does not grant new rights to employees with regard to workplace drug use, and employers may still have zero tolerance policies. Individuals’ rights to use marijuana at work have not changed, and employees are still subject to employer discipline for violating the employer’s drug policy, even though use of marijuana is now “legal.”
The legal landscape regarding marijuana is continuously evolving. More and more states permit the use of medical marijuana, and it’s likely that additional states will decriminalize recreational marijuana in the coming years. It’s likely that as these laws changes, attitudes towards drug testing in the workplace for marijuana may also change.
However, for the time being, employers’ rights to have a “zero tolerance” drug policy have not changed, and indeed, many employers continue to be required to have such a policy either because they have federal contracts or because of industry-specific regulations.
Until recently, there was little need to define “illegal drugs” or “controlled substances.” Now that marijuana is legal in Colorado and Washington, employees may believe that marijuana use won’t violate an employer’s drug prohibition, even though marijuana is still illegal on the federal level. Failure to clearly define what behavior is prohibited could cause misunderstandings at best, and at worst could land an employer in court as a test case.
Now is a good time for employers to re-examine their employee manuals with their legal counsel to make sure they clearly and accurately express employers’ drug and drug testing policies.
Lauren Burgon [Bellevue Business Attorney]