The Effects of I-502 and the “Decriminalization” of Recreational Marijuana Use Upon the Workplace

The passage of Initiative 502 during the last election, and the resultant decriminalization of recreational marijuana use under Washington state law, has raised a multitude of questions for employers. In anticipation of our clients’ questions and concerns, following is an overview of I-502 and its effects upon the workplace.

I-502, which decriminalizes the cultivation, sale, possession and use of marijuana under certain circumstances, takes effect December 6, 2012. The new law will establish a complex licensing, distribution and tax scheme for recreational marijuana use, and permits individuals over the age of 21 years to possess and use small amounts of marijuana (defined as less than one ounce).

Importantly, however, personal marijuana use (whether for medical or recreational purposes) remains illegal under federal law. The Controlled Substances Act, 21 U.S.C. § 801 et seq., continues to list marijuana as a prohibited Schedule I narcotic (defined as an addictive drug without any accepted medical purpose in the United States). The passage of I-502 does nothing to alter the enforcement prerogatives of federal agencies, including the Department of Justice, the Drug Enforcement Agency and the Department of Transportation. As of the date of this communication, the DOJ has not announced its policies or position with respect to the passage of I-502 (or the similar initiative passed by Colorado voters); however, some commentators believe that the DOJ may seek to enjoin the enactment of I-502 to the extent that it conflicts with federal law.

In addition to the fact that marijuana possession and use remains a federal crime, I-502 itself does not specifically extend protection to marijuana users in the workplace. I-502 does not require modification of current employment practices, including an employer’s “zero-tolerance” drug and alcohol policies and testing requirements. This is particularly true for employees with Commercial Driver’s Licenses (“CDL’s”)—CDL holders will continue to be governed by the DOT’s Drug and Alcohol Testing Regulation, 49 CFR Part 40, at 4.151(e), which does not recognize any legitimate use of marijuana and treats any trace of THC (the “active” ingredient in marijuana) in the system as a violation.

Notwithstanding, employers may anticipate that the passage of I-502 will create confusion with respect to their drug and alcohol policies, and that some employees will inevitably raise the “legality” argument in defense of a positive marijuana test result. As a result, we recommend that employers take the following steps prior to the December 6, 2012 effective date:

• If you do not already have a written drug and alcohol policy, consider implementing one as soon as possible.
• Review current drug and alcohol policies and address any ambiguities with respect to the applicability of federal law and/or the continued prohibition of marijuana use under the employer’s policy.
•  Distribute to all employees a written confirmation of the employer’s continued enforcement of its “zero-tolerance” policy with respect to marijuana use, including a clear explanation that marijuana use continues to be illegal under federal law, and that a test showing any trace of marijuana in the system will be considered a failed test, a violation of the employer’s drug and alcohol policy, and grounds for disciplinary action, up to and including termination. Remind employees that some illegal drugs, including marijuana, remain in their systems for a long time and may trigger a positive test days, or even weeks, after it is used. Public employers should continue to be mindful of the general testing restraints announced by the Washington court in Robinson v. City of Seattle, 102 Wn. App. 795 (2000), which generally limits pre-employment and/or random drug and alcohol testing to only employees in “safety-sensitive” positions.

Furthermore, unionized employers should not make any actual changes to their existing drug and alcohol policies as to bargaining unit employees without first considering whether such changes trigger a duty to bargain. Drug and alcohol policies are generally considered to implicate a “mandatory subject of bargaining,” and employers may not unilaterally change such policies without first negotiating with the union. However, a unionized employer may reiterate its interpretation of an existing drug and alcohol policy and its position that the prohibitions contained therein to continue to apply to marijuana, notwithstanding the passage of I-502. However, unionized employers must be prepared to demonstrate “cause” for disciplining upon a positive test for marijuana. Traditionally, employers have relied on safety reasons; however, this argument may be adversely impacted by the passage of I-502, especially if the employee is not “impaired” at the time of testing.

Given the uncertainty associated with this developing area of the law, drug and alcohol policies should be regularly reviewed by counsel. Additionally, employers should consult with counsel before disciplining any employee for a positive marijuana test.