Misinformation about the legalization of marijuana in Washington State could result in termination, if an employee tests positive for a drug test in a company that has a zero-tolerance drug policy. Employer’s zero tolerance drug policies are not affected by the new law.
Legal recreational and medical use of marijuana does not give employment protections to employees who fail employer drug tests. Drug testing focused on ‘any detectable level’ will remain enforceable for pre-employment, reasonable suspicion or post-accident situations.
Employers remain liable for failure to provide a safe workplace leaving no change to employment terms including drug policies. Use of marijuana remains a crime under Federal Law, so it is not illegal to terminate an employee that engages in unlawful activity in violation of company drug policy.
Indeed, zero tolerance drug policies must remain in place where OSHA and other federal laws regulate safety for tools, machines, vehicles, hazardous substances and in other ‘safety sensitive’ workplaces. Legalization of marijuana in Washington State will not prevent termination of an employee by an employer subject to the federal Drug Free Workplace Act of 1988 or other federal laws governing workplace safety.
Reasonable suspicion testing is still permitted for those employees who indicate possible drug use while on the job. Reasonable suspicion testing is justified when an employee has an unusual odor coming from his/her clothes or hair, red eyes, or exhibits excessive hunger/thirst, lack of short term memory, or difficulty judging time/distance.
Marijuana is not a drug regulated by the Food & Drug Administration and there is insufficient research on the effects of marijuana use other than it stays in the system for 40 days . Companies such as Boeing and Costco have issued notices to their employees that use of marijuana is still prohibited under their drug-free workplaces policies – even when state stores open to sell recreational marijuana.
This information is general in nature and is meant as a guide. Established in 1936, Washington Employers is now the region’s largest Human Resources consulting and employee training organization with more than 1,000 employer members.
Washington Employers trains more than 9,000 employer-member employees each year; manages the state’s largest Manufacturing Retrospective Rating Program (with more than $36M in annual premiums); and publishes the largest wage and salary survey in the state.
Washington Employers helps its members be better employers and build more productive teams by providing guidance on every aspect of the employer/employee relationship, including the areas of HR advice and counsel (compliance), leadership effectiveness, collective bargaining, safety and loss control, affirmative action plans, compensation, and more.
Staff Attorney Kara Craig specializes in a wide range of employment and labor law issues and increasingly counsels employers about marijuana and the workplace for Washington Employers, the region’s largest Human Resources consulting organization that trains more than 9,000 employees each year for 1,000 employer members in Washington and Idaho.