Pot’s legal: now what?

Joe Vance


Employers have no-tolerance policies for drugs for numerous reasons. Workplace safety issues are paramount, particularly in jobs that require employees to operate equipment. Productivity is also an issue, as are concerns about an employee’s health or absenteeism. Often, the clients of companies require drug testing, and companies must comply to remain viable. Furthermore, federal and state requirements that cover truck drivers and workers involved with federal government contracts mandate compliance with the Federal Drug Free Workplace Act.

With the passage of Initiative 502, beginning Dec. 6, 2012, Washington law has allowed those 21 and older to possess up to one ounce of marijuana. However, marijuana possession remains illegal under federal law, and Initiative 502 does not alter Department of Transportation regulation of marijuana use by certain safety-sensitive transportation employees, such as bus drivers, pilots and truck drivers.

Moreover, employers may discharge at-will employees who use medical marijuana, even though the use of medical marijuana has been lawful under Washington law since 1998. Employers retained this right with the 2011 Washington Supreme Court decision in Roe v. Teletech Customer Care Management (Colorado) LLC. The case involved a woman who worked at a call center. Her job did not include operating heavy equipment or any other task that would raise an on-the-job safety concern, but her company did have a zero-tolerance drug policy. The employer operated a telephone call center for customers of Sprint Nextel Corp., and the contract with the telecom client required the call center to have a no-drug policy for all employees. The court found that Washington’s Medical Use of Marijuana Act (MUMA) neither created a cause of action itself nor gave rise to a public policy that would prohibit employers from discharging employees who use marijuana medicinally.

Logically, the same rationale should apply regarding Initiative 502. The initiative says nothing about the workplace, and if the passage of MUMA did not create a public policy preventing employers from discharging employees who lawfully used medical marijuana, it is unlikely that Initiative 502 would bar employers from discharging employees who lawfully use marijuana recreationally.

Although the new law does not appear to change an employer’s right to enforce its drug policy, it does not mean that employers should do nothing. Employers would be wise to review their workplace policies and, if necessary, consider clarifying the definition of “illegal drugs.”

In addition, the new law has likely caused some confusion among some employees who might assume that they can now smoke pot and go to work. Accordingly, once an employer has updated its policy, the employer should re-circulate the policy to employees and remind workers that the policy still applies to marijuana use, possession and being under any influence.


Joseph Vance is a partner at Miller Nash LLP and chair of Miller Nash’s Vancouver litigation team. His practice is focused on business litigation and employment law & labor relations. Joe can be reached at 360.619.7032 or at joseph.vance@millernash.com.

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