Marijuana Legalization and its Effect on Your Drug Screening Policy

Whether you were a Trump supporter, Clinton supporter, or none of the above, the election is behind us. The results of the November ballots resulted not only in the election of Donald Trump as our president, but also the legalization of recreational marijuana use in four states in what the media is calling a big win for marijuana reform.

California, the United States’ most populous state, along with Massachusetts, Nevada, and Maine, approved the use of recreational marijuana on Tuesday, November 8^th. Overnight, the number of states permitting recreational use grew from four (Alaska, Colorado, Oregon, and Washington) to eight, doubling the amount of states in which use of marijuana is legal. So not only has the most populous state legalized marijuana, but the movement for reform has made its way out to the east coast.

Recreational use was not the only marijuana-related question on the ballot either. Medical marijuana usage was approved by three new states (Florida, North Dakota, and Arkansas), pushing the number up to a whopping 28 states. Nine different states had marijuana on the ballot, so we will talk about the impact these bills will have on your drug screening policy.

Whenever a new bill is passed relating to marijuana, we get questions about how that will impact your corporate drug screening policy. We’ve written about it in the past, and the answer remains the same as before. Until marijuana is removed from the list of Schedule I drugs under the federal Controlled Substances Act, employers should still be able to test for the substance as they see fit. That is because the states that have passed these laws permit taking adverse action if the employee is under the influence of marijuana at work.

Now some may ask, “Don’t these new laws prohibit adverse action (firing of an employee) for the off-duty use of marijuana?” The answer is yes, but determining whether it was used during work hours or after hours can be tricky. The problem lies in the testing methods used for marijuana. Unlike alcohol, there is no known threshold for impairment. Testing for marijuana, depending on the method, can detect use from as far back as 30 days. For hair tests, the window of detection is larger. Therefore, a positive result does not necessarily mean the applicant/employee is impaired. However, there is no way to be sure.

In conclusion, due to the limits of drug screening for marijuana and the drug’s inclusion in the list of Schedule I drugs under the federal Controlled Substances Act, employers can still take adverse action against employees and applicants for a positive drug test. So for now, employers can still maintain a zero-tolerance policy for the drug should they so choose. Whether the spread of this marijuana-related reform or the development of new drug screening tools will change this remains to be seen. We recommend that companies at the very least review their policies and, should they continue to enforce a zero-tolerance policy, communicate to their employees that marijuana use could still result in the termination of employment.

How Does Washington State's Recent Law Affect Drug Testing?

Washington State recently passed a law that legalizes Marijuana. How does this new law affect employers that have a drug free workplace policy and drug tests their applicants?

Although Washington State passed the law on marijuana, it is still a drug that is on the Federal list of banned substances.  

To give you a little history, prior to the implementation of the Drug Free Workplace Act of 1988, the US Postal Service did a study on the use of marijuana and it's effects.  The facts according to the study are there is significant higher absenteeism rates, higher medical health care costs and higher and lower productivity rates for those individuals that used marijuana.  All of these factors cost American Business billions of dollars each year.

We do suggest that all companies update their policies to reflect that the company does have a "Drug Free Workplace" and that they adhere to the list of banned substances that are provided under "Federal Law".

Also, according to two recent court cases in both Washington State and Oregon, it appears your company has the right to deny employment based on a positive marijuana drug test. 

“In June 2011, the Washington Supreme Court held in Roe v. Teletech Customer Care Management, LLC, decided in June 2011, that the Washington State Medical Use of Marijuana Act does not prohibit an employer from discharging an employee for use of medical marijuana.  The Court noted that Washington’s Medical Use of Marijuana Act was passed only to provide an affirmative defense to qualifying patients, caregivers and physicians for conduct that is otherwise prohibited by law (such as a defense to a violation of a local ordinance or state law prohibiting the personal possession or use of the drug).  The Court’s decision goes on to confirm that the statute explicitly states that it does not require accommodation of any medical use of marijuana in any place of employment. In other words, the Court’s decision in this case confirms that the Act was not passed to give employees a free pass to violate their employer’s drug-free workplace policies and that employers may continue to hold their employees – even those with a lawful medicinal marijuana prescription – accountable under their drug-free policies.

The Oregon Supreme Court issued a similar ruling last year, in Emerald Steel Fabricators, Inc. v. Bureau of Labor & Industries.  In that case, the Oregon Court confirmed that employers are not required to accommodate use of medical marijuana under the Oregon Medical Marijuana Act.   The Court specifically held that an employer was justified in revoking an employee’s offer of permanent employment after he notified the employer of his medical marijuana use.  Following termination, the employee argued that he was discharged because of a disability which the employer failed to accommodate.  The Court sided with the employer that the employee was not protected and the United States Controlled Substances Act – a law that the Court concluded preempted the Oregon statute authorizing use of medical marijuana.”
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