by Javier F. Garcia
Washington’s new law concerning recreational marijuana use takes effect December 6, but it doesn’t require changes in employer policies.
Initiative 502 (I-502), approved in the November 6 election, is intended to make the production and sale of marijuana a regulated, state-licensed system similar to that for controlling hard alcohol. It means that adults over 21 no longer will be prosecuted under state law for possessing limited amounts of marijuana and using it in private.
Marijuana use remains illegal under federal law. Therefore, federal contractors and employers receiving federal funding will want to avoid policies that allow consumption of marijuana on the premises to prevent loss of funding and federal prosecution. Also, many employers have drug-free workplace policies and/or collective bargaining agreements that prohibit the use of alcohol and drugs, including marijuana in the workplace.
Despite I-502, employers are free to maintain a broad prohibition on marijuana, including marijuana consumption outside the workplace or for medical purposes subject to other policies and practices. Some of Washington’s largest employers already have publicly stated that marijuana is still prohibited under their employment policies and that employees who consume marijuana will be subject to discharge.
I-502 has no impact on an employer’s duty to accommodate medical marijuana. It applies to recreational use and doesn’t contain language relating to employment. Any reasonable accommodation request would be governed by the Medical Use of Marijuana Act.
The federal Department of Transportation has released a statement in response to state initiatives concerning recreational use of marijuana in which it reiterates that such laws have no impact on the prohibition of use of marijuana by safety-sensitive transportation employees.
“It is important to note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act,” the statement says. “It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.”
Watch for more information on I-502 in the December issue of Washington Employment Law Letter.
Javier F. Garcia is an attorney in the Seattle office of Perkins Coie and a contributor to Washington Employment Law Letter. He can be reached at jgarcia@perkinscoie.com.