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November 15, 2012
I-502: Anti-Drug Policies Likely Still Enforceable
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In the wake of Washington voters approving I-502, which legalizes the sale and possession of up to one ounce of marijuana, employers may continue to enforce their anti-drug policies.  The initiative does not prohibit employers from enforcing their handbook policies barring drug use or possession.  Although I-502 decriminalizes the use and possession of some marijuana, it does not address the use or possession of marijuana in the employment context.  Additionally, under a recent Washington Supreme Court case, employers likely will not have to permit the use or possession of marijuana so long as marijuana remains illegal under federal law. 

In Roe v. Teletech Customer Care Management, the Supreme Court held that the Medical Use of Marijuana Act (MUMA) did not provide a private cause of action for employees discharged for violating an employer’s anti-drug policy, even if the employee lawfully used marijuana pursuant to MUMA.  Additionally, the Court held that MUMA did not provide a strong enough public policy that would support a claim for wrongful discharge in violation of public policy.  Specifically, the Court reasoned that, since marijuana remains illegal under federal law, employers here in Washington are not required to permit illegal activity at the workplace. 

Marijuana use and possession remain illegal under federal law despite I-502’s passage.  As such, it is likely that the Washington Supreme Court will rule that employers may continue to discharge employees who violate the employer’s anti drug policy. 

Employers may also confidently enforce their anti-drug policies in the same manner they enforce their policies prohibiting employees from showing up to work under the influence of alcohol or other substances that might impair a person’s performance.  Alcohol is a legal substance for adults over the age of 21, yet employers may discipline employees for showing up to work under the influence of alcohol pursuant to a properly drafted employment policy.  Marijuana use will likely be treated similarly to alcohol use – employers do not have to tolerate employees who show up to work under the influence of alcohol or drugs. 

Although current rules permit employers to enforce their anti-drug policies, employers should ensure their handbook policies remain consistent with applicable law.  Employers also should monitor the Legislature’s actions over the next year.  I-502 directs the Legislature to adopt regulations governing the possession, use, and sale of marijuana in Washington State.  It is possible that during the legislative process, additional guidance will emerge for employers. 

Please contact Eisenhower’s Employment Group if you need assistance with drafting or revising your substance abuse policies. 

Disclaimer

This advisory is a publication of Eisenhower Carlson PLLC. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

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