Passage of Initiative 502 which legalized marijuana use under state law is not expected to have much impact on workplace drug policies. As noted in the Ahlers & Cressman Construction Law Blog presented below employers may maintain drug-free workplace policies which prohibit employees from using marijuana or other illegal substances even if those substances are legal under state law.
Also in a memo to participants in the Washington Construction Industry Substance Abuse Program (WCISAP) administrator Clean WorkForce said The passage of Initiative 502 does not affect the WCISAP; the use of marijuana is still prohibited under the WCISAP. And with regard to medical use The use of marijuana which is a Schedule I controlled substance under federal law is expressly prohibited under this Plan even if its medical use is authorized under state law. In addition AGC suggests that all employers should update their drug-free workplace policies to inform their employees that use of any illegal substances under state and federal law is cause for termination.
See the blow post below by Ahlers & Cressman Attorney Daniel Berner for more discussion (and particularly note the link the Seattle Times article which provides a broad overview of the issue).
INITIATIVE 502S IMPACT ON DRUG-FREE WORKPLACE POLICIES
DATE: NOV 20 2012 / AUTHOR: DANIEL A. BERNER Ahlers & Cressman
On November 5 2012 voters approved Initiative 502 (I-502) which legalized marijuana use in Washington State. Under I-502 which goes into effect December 6 2012 adults age 21 and over in Washington State can no longer be arrested under state law for possessing either 1 oz. of useable marijuana 16 oz. of marijuana-infused product in solid form or 72 oz. of marijuana-infused product in liquid form. I-502 does not change Washington State employment law which allows for a drug-free workplace and for employee drug testing. In fact I-502 does not provide any protection for employees who use marijuana.
Marijuana remains illegal under federal law and is classified as a Schedule I controlled substance under the Controlled Substances Act (CSA) 21 U.S.C. § 801-971.
In Roe v. Teletech Customer Care Mgmt. the Washington Supreme Court held that Washingtons Medical Use of Marijuana Act (MUMA) did not provide a private cause of action for employees discharged for violating an employers anti-drug policy even if the employee lawfully used marijuana pursuant to MUMA. The court reasoned that since marijuana remains illegal under federal law employers in Washington are not required to permit illegal activity in the workplace.
In an article published on November 17 2012 the Seattle Times reported that the City of Seattle informed its employees that the city was maintaining its drug-free workplace policy because it receives federal funding and federal law still bans marijuana I-502 notwithstanding. The same logic applies to contractors who perform work on federally funded projects.
Based on the reasoning in Teletech employers may maintain drug-free workplace policies which prohibit employees from using marijuana or other illegal substances even if those substances are legal under state law. Most state government employees will still not be permitted to use marijuana regardless of I-502 decriminalizing certain amounts of marijuana usage. Private sector employers should update their drug-free workplace policies to inform their employees that use of any illegal substances under state and federal law is cause for termination I-502 notwithstanding particularly for projects funded by the federal government.