Zero tolerance workplace
While marijuana may be legal in the state of Washington (in limited amounts), it is still illegal under federal law. Some believe that Attorney General Eric Holder will not enforce federal law against Washington’s legalized marijuana industry so long as the state puts sufficient regulations in place to ensure that the industry is contained within the state of Washington (and does not cross borders). However, even if federal laws are not enforced, employers must still deal with a situation where marijuana is legal in Washington and not legal under federal law.
For example, employers funded by any federal monies have no choice but to continue to comply with the federal Drug-Free Workplace Act requirements. This makes “zero tolerance” an easy choice. Industrial employers and others with safety concerns (such as trucking or construction companies) will also likely want to keep zero tolerance policies.
If your company chooses a zero tolerance approach, you should check your policies to ensure appropriate language is used. For example, you would not want a policy that prohibits use of “all illegal drugs,” as it raises a question of whether marijuana is considered legal. Instead, prohibit the use of “all drugs that are illegal under federal, state or local laws.”
Tolerant workplace
Not all employers are going to need – or want – a zero tolerance workplace. Many may opt to treat legalized marijuana as they do alcohol: They will choose not to regulate what employees do when they are not at work.
If you are one of these employers, the simple approach is to create marijuana policies that mirror your alcohol policies. For example, you will want to prohibit possession or use in the workplace. In addition, instead of a zero tolerance policy, you should stick with an “under the influence” standard. This allows you to test for marijuana if you believe that an employee is under the influence (a standard that you likely already have in place for alcohol).
If you have a tolerant workplace, but you still plan to test employees if they appear to be under the influence, you should familiarize yourself with the different types of testing that can be done. The typical urine drug screen includes a screen for marijuana. However, this test looks for marijuana residue that is not the active component that causes the high. As such, this test would be inappropriate to determine if someone is under the influence. Instead, you should see if your lab can test for delta-9-THC. This is the active metabolite from marijuana and is the same component that law enforcement in Washington will test for to determine if someone is driving under the influence of marijuana.
For both zero tolerance and tolerant employers, you must remember that employees who use medical marijuana present special risks and issues for employers. While your policies may not need to be changed to address medical marijuana, those employees may have an underlying disability, so you should be very cautious in dealing with those situations.
While there is some work to be done to review and update employment policies, the implementation of I-502 should not cause employers too much alarm. Take some time to strategize about what kind of employer you want to be – tolerant, or zero tolerance – and then review your policies with that goal in mind.
Kelly Walsh is an attorney in the Vancouver office of regional law firm Schwabe, Williamson & Wyatt, focusing her practice in the areas of commercial and business litigation, as well as construction law. She can be reached at 360-905-1432 or kwalsh@schwabe.com.
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