Since the good people of Washington state voted to legalize recreational use of Marijuana, beginning at the end of 2012, employers in the Evergreen State have been dazed and confused about their rights. Unsure about whether or not they can rightfully prohibit the use of pot by their employees, or if they must allow them to indulge on their own time, employers are left in a haze.

Recently, a client came to us second-guessing actions they’d taken when they retracted a job offer from a candidate who failed a pre-employment drug screen. The employer has had a drug-free workplace policy and procedure in place for many years. They had extended an offer of employment to a job candidate, contingent on the applicant successfully passing a pre-employment drug screen. The applicant subsequently failed the drug test – testing positive for THC, the active ingredient in marijuana. As a result of the failed test, the employer rescinded their offer of employment, at which time the applicant provided a “green card” documenting a legal prescription for medicinal marijuana from the state he had been residing in. To add to the employer’s concern, the candidate informed the company the he had already (prematurely) relocated his family from out of state to Washington, ostensibly to begin his new job with this employer.

That’s when the bud of doubt crept in…What might the company’s exposure be, as it related to their decision to withdraw the job offer for the failed drug test? Their actions were consistent with those they’d taken before with applicants who failed pre-employment drug tests, consistent with the requirements of their long-standing Drug-Free Workplace Policy – a policy that included marijuana as a banned substance. But,

“Does a legal prescription for pot override that? What about the fact that possession and consumption for recreational use is now legal? Does that change things?”

Some employers have taken many deep breaths and burned the midnight oil wrestling with these questions and their answers. Employees and weed is still a relatively green and an emerging stem of employment law. There’s little in the way of legal precedent or court cases from which to draw conclusions, so it’s important to stay abreast of new developments that may shed light on things – developments that are sure to come. In the meantime, the following paraphernalia may help those employers, who want to ban pot use by their employees and free their minds to enjoy their own sweet Jamaican pipe dreams – at least until the smoke clears…

• Like alcohol, Washington state law does not require employers to permit drug use in the workplace, under any circumstances, or to tolerate employees reporting to work impaired or under the influence.
• Currently, the Americans with Disabilities Act (ADA) does not require employers to allow marijuana use as a reasonable accommodation for someone with a disability, even if that person is a registered medical marijuana patient.
• Federal law still classifies marijuana as a Schedule I drug, meaning there is currently no legal use – medically or otherwise – under the Controlled Substances Act (21 U.S.C. § 812(b)(1))
• The new Washington state law (Initiative-502) included no specific protection to employees who use marijuana after-hours, and certainly not in the workplace or during working hours.
• Employers may institute drug-free-workplace policies and the courts have supported employers’ efforts to maintain a drug-free workplace.
• Employers can still choose to test employees for marijuana and enforce a drug-free workplace. However, it’s important that your company’s Drug-Free Workplace Policy and drug testing procedures are current and up-to-date. Confirm that your policies are as clear as possible and that they crystalize the company’s stance on marijuana use, rather than simply addressing “illegal drugs” or “drugs that are illegal to obtain.” Make sure you have communicated your policy to all employees and have clearly stated what is expected of them.
• Consistently follow your stated policies and procedures.
• Reiterate and remind your employees and job applicants that marijuana remains a banned substance at your workplace and consumption of it is a violation of the company’s policy. This communication can help clear up any confusion employees may have after the passage of Initiative-502.
• Legal recreational and medical use of marijuana does not give employment protections to employees who fail employer drug tests. Additionally, drug testing that is focused on “any detectable level” of THC currently remains enforceable for pre-employment, reasonable suspicion, and/or post-accident conditions.
• Even though recreational use of marijuana is now legal in Washington state and makes enforcing your company’s Drug-Free Workplace Policy more contentious than ever, when it comes to private and personal after-hours use, so far the courts in Washington state have ruled in favor of employers. One of the few court cases on the matter occurred in 2011 in Bremerton, WA. The case addressed legal use of medical marijuana. The Washington State Supreme Court ruled that an employer can fire a worker who uses physician-authorized medical marijuana, even when the worker uses it only at home and exhibits no impairment at work. Because Washington state’s medical marijuana law did not spell out any provisions regarding workplace use, the Supreme Court found it allowed no recourse in employment disputes (Jane Roe v. TeleTech Customer Care Management, LLC).
• The 9th U.S. Circuit Court of Appeals (which governs Washington state) has held that “the ADA does not protect medical marijuana users who claim to face discrimination on the basis of their marijuana use.”

WHAT DOES THE FUTURE HOLD?
It’s not going to get any easier for employers to deal with marijuana use by employees (or prospective employees) anytime soon. According to the federal government, there are no acceptable or legal uses of marijuana nor does it appear there will be anytime soon. Therefore, employers should expect conflict between the federal laws and state laws on marijuana in the workplace to continue. Companies should anticipate more employment practices liability claims and lawsuits brought against them by employees who were terminated, denied employment, or disciplined for marijuana use in violation of their company’s anti-drug policies.

WHAT’S A COMPANY TO DO?
Employers should be prepared to answer questions from employees and job applicants about policies related to marijuana and other drug use (including alcohol).

Businesses that have federal government contracts are regulated by Department of Transportation (D.O.T.) guidelines and must comply with drug testing requirements, which includes the prohibition of marijuana use. That makes it an easy policy decision: “Zero-Tolerance.”

Next, if the job in question is “safety-sensitive” (as defined by the employer), such as a heavy equipment operator, then there’s likely to be a legitimate basis for refusing to hire or for taking adverse employment action against someone for pot use. Safety considerations should be analyzed with reference to an identifiable threat of harm or danger to persons or property. This is the type of analysis where it is always advisable for employers to consult legal counsel.

In situations where safety is not the justification, companies need to determine if there are any circumstances in which someone who tests positive for marijuana use would not be subjected to the ramifications of failing the anti-drug policy. An example may be in the case of the “green card” or medicinal marijuana user. That, too, is a policy decision that should be considered with the assistance of legal counsel.

MEDICINAL MARIJUANA
Medical marijuana is legal in about half of the states, including Washington. Many of those states have laws prohibiting companies from discriminating against employees who legally use medical marijuana, including registered patients who test positive for the drug, but Washington state is not one of them…yet. None of the protections apply to employees who are impaired in or at the workplace or during working hours.

AMERICANS WITH DISABILITIES ACT (ADA)
The ADA is a federal law and at its core is the obligation for employers to engage with the employee or applicant in the “interactive process” for the purpose of identifying whether or not a “reasonable accommodation” exists that would enable the otherwise qualified individual to perform the essential functions of a job. However, there is specific language in the ADA that excludes users of illegal drugs and specifically exempts current illegal drug users from being considered “qualified individuals.” As of the date of this post, no decisions by the courts were available to clarify which interpretation of the ADA will prevail.

Under Washington state’s Medical Marijuana Act (RCW 69.51A), use of marijuana, if prescribed by a physician for a medical condition, is allowed. However, the federal Controlled Substances Act prohibits the possession of marijuana. Therefore, because possession is illegal under federal law, it may be considered unreasonable to require an employer to provide a reasonable accommodation under the ADA that is in violation of another federal law.

If and when this position on the federal front changes, a prudent employer would be best served to evaluate each situation involving medical marijuana on a case-by-case basis, just as it should do now for every other case where there is a disability or perceived disability and/or a request for a reasonable accommodation. In any case, a company most certainly should consult experienced employment legal counsel before implementing any policies, or taking any action against an employee or job applicant, that encroaches on the subject of medical marijuana.

SUMMARY
True zero-tolerance policies by employers will become more and more scrutinized as we move forward. Companies will need to articulate whether they wish to ban all employee drug use or merely impairment in the workplace. Employers will continue to hear the argument that the presence of THC in the body does not necessarily indicate that someone is presently impaired. While an employee may only feel the effects of marijuana for a matter of hours, THC can be detected for several days—or even weeks—if the employee is a chronic user.

For employers that choose to continue to have a “zero-tolerance” policy for marijuana use, they should be prepared to answer additional questions, such as, “How will they handle recreational use of marijuana by employees and job applicants that are permitted by law?” The shift is likely to be toward banning impairment on-the-job rather than banning any personal usage under a “zero-tolerance” policy – similar to another legal drug – alcohol. The new issue is becoming, “What will be the threshold for determining impairment of someone under the influence of marijuana?” That leads to the question of, “What will be the legally accepted methods of testing for impairment by cannabis?”

BOTTOM LINE
In spite of all the legalization, employers are still within their rights to enforce their drug and alcohol policies as they always have. Employees and job applicants who think the State’s legalization of recreational (or medicinal) use of marijuana gives them a green light to consume on their own time, without fear of losing their jobs, may be setting themselves up for a major downer. If marijuana use is prohibited as a condition of employment, employees can be terminated and applicants can be denied employment for violating this condition.

So, while the fragrance of Afghanistan may reward a long day’s toil, inhaling it can still lead to unemployment because their job may be Up in Smoke!

###

I am not an attorney, nor do I play one on TV, and I don’t profess to be one. So, please read and take note of the following:

DISCLAIMER: The comments and materials contained herein are solely the opinion of the author and are only intended to be thought-provoking and for informational purposes. The comments and materials are not be construed as legal advice. Before acting on the basis of any of this information or material, you are strongly advised to consult your employment attorney for legal advice. Neither the author nor his employer or anyone else he represents accepts any liability for any damages or other liability arising out of this communication or the reliance upon any of the information provided herein.