Wash.: Implications of Marijuana Legalization for Employers

By Nov 14, 2012
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Washington State voters have agreed to allow the sale and possession of small amounts of marijuana. Individuals who are 21 years and older may lawfully purchase and possess up to one ounce of useable marijuana, or larger amounts of marijuana-infused products, at licensed retail outlets that have been approved by Washington’s state liquor control board, under the measure approved Nov. 6, 2012.

Initiative 502 takes effect on Dec. 6. However, it will likely take more than a year for required rules to be issued establishing a system for licensing growers, distributors, and retailers. Licenses will not be issued until after those regulations are adopted. In the meantime, it will still be illegal under state law to grow, distribute, or market marijuana, except as now permitted under state law for medical marijuana. And even after Initiative 502 becomes operational, it will remain unlawful to open or consume marijuana in the view of the general public.

While possession of marijuana in accordance with the initiative’s changes to the state’s Controlled Substances Act is not a criminal or civil offense under Washington law, marijuana possession remains unlawful under the federal Controlled Substance Act. It is unclear how federal officials will react to this conflict. Further, the new law does not contain any express employment protections for marijuana users.

The Washington Supreme Court previously held in Roe v. TeleTech Customer Care Management that similar protections from criminal and civil liability under Washington’s Medical Use of Marijuana Act (MUMA) did not prohibit an employer from discharging an employee for failing a required drug test nor did MUMA impose a duty to accommodate an employee’s medical marijuana use. It remains to be seen, however, whether courts will apply the Roe reasoning to the changes made by Initiative 502.

In light of this development, Washington employers may anticipate increasing issues with marijuana use by applicants and employees. Employers with such concerns should consider creating policies to address substance abuse that impacts employees’ conduct or work, or reviewing their existing policies about drug-testing, safety, and substance abuse. These may include policies that prohibit employees from using or being under the influence of lawful substances such as alcohol and prescription drugs as long as the policies are written in a manner consistent with applicable federal and state laws prohibiting disability discrimination or regulating drug testing. Additionally, unionized employers should remember their possible collective bargaining obligations associated with these subjects. Of course, employers should continue to follow legal developments relating to the initiative, which may affect substance abuse policies.

Employers with multi-state operations should also continue to monitor developments across the nation. Colorado voters also passed a measure to legalize marijuana for recreational use by adults in their state, and Massachusetts became the 18th state to put some form of a “medical marijuana” law on the books this election cycle.

Jackson Lewisrepresents management exclusively in employment, labor, benefits and immigration law and related litigation. For more information about this article, contact Karen P. Kruse, Bryan P. O'Connor, Nathan B. Hongor Catharine M. Morisset. Republished with permission.© 2012 Jackson Lewis. All rights reserved.

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