Does Legal Marijuana Change Employee Rights in the Workplace? The Short Answer Is No

Legalization of cannabis will likely not change workplace drug rules
Legalization of cannabis will likely not change workplace rules.

As of December 6, 2012, if you are caught in Washington State with an ounce or less of cannabis (and you are over 21 years of age), you cannot be prosecuted or arrested under state law. Just three days after passage of I-502, King County prosecutor Dan Satterberg and Pierce County prosecutor Mark Lindquist announced that they would drop 175 misdemeanor marijuana possession charges. “There is no point in continuing to seek criminal penalties for conduct that will be legal next month,” Satterberg said.

I-502 is creating all sorts of unprecedented actions by the State and law enforcement (in fact, according to the Seattle Police Department, the smell of cannabis in your car, alone, is no longer grounds for probable cause). But there’s been an ongoing battle in the cannabis world between employers and employees regarding drug testing and the use of marijuana and employers have successfully fired employees who have tested positive for cannabis use, even if that use was for legitimate medicinal purposes. The passage of I-502 begs the question: does this change things for cannabis users in the work place?

The short answer is no. Washington’s current cannabis laws and case law make clear that employers need not accommodate employees who use either medicinal cannabis or marijuana for recreational purposes. Notably, I-502 does not even mention the topic of employment. Though I-502 prevents someone from being arrested and prosecuted for possessing certain amounts of cannabis, it has no impact on employee rights at work. There is nothing in I-502 to protects the right to use cannabis in the work place and you can still be terminated by your employer if you fail a drug test under a zero-tolerance policy, even if the cause of your failure was marijuana. The “drug-free workplace” also remains alive and well by virtue of a 2011 Washington Supreme Court decision which held that employers are not required to accommodate an employee’s use of medical cannabis and are permitted to discipline or terminate cannabis users who violate workplace drug policies.

I-502 does not explicitly impact employers regarding the use of marijuana and we do not expect many employers to amend their drug policies to permit the use of cannabis. Even if I-502’s ultimate goal is to treat cannabis like alcohol, employers may still require alcohol testing of their employees, discipline for policy violations, and regulate alcohol use and its effects in the workplace.

Consequently, even with cannabis being decriminalized and despite its rapid social acceptance of marijuana in Washington (and elsewhere), we are not likely to see repeals of employers’ “zero drug tolerance” policies any time soon.

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Medical Marijuana, News