In light of the passage of Initiative 502, can Washington State employers continue to have policies prohibiting being under the influence of, or possession and use of, marijuana at work? The short answer is “probably yes.” Just because something is legal does not mean that employers are required to allow it. The text of I-502 does not prohibit employers from having policies limiting or prohibiting marijuana possession or use. The relevant portions of the new law decriminalize certain aspects of possession and use under state law, but there is nothing in I-502 that would prohibit an employer from having rules about intoxication, possession and/or use of marijuana just like employers can limit other legal substances, such as by prohibiting the consumption of alcohol or being under the influence of alcohol during work hours, or by prohibiting employees from using tobacco products.
The Washington State Supreme Court addressed the issue of marijuana use in employment in a slightly different context after the Washington State Medical Use of Marijuana Act (“MUMA”) was adopted. In Roe v. Teletech Customer Care Management, the Court decided that MUMA does not provide a private cause of action for discharge of an employee who uses medical marijuana, nor does MUMA create a clear public policy that would support a claim for wrongful discharge in violation of such a policy.
MUMA is different from I-502 in that MUMA was amended by the legislature to read, “Nothing in this chapter requires any accommodation of any on-site medical use of marijuana in any place of employment.” The Roe case did not involve on-site use, but was about an employee who tested positive for marijuana due to off-site use under a prescription for medical marijuana. The employee argued that the reference to on-site use in MUMA meant that an employer had to accommodate off-site marijuana use. The Supreme Court rejected this argument.
Although I-502 does not mention employment at all, it is likely that the reasoning the Court applied in the Roe case would be applied to use after I-502 goes into effect. Ultimately, this is an issue to be sorted out by the courts and the legislature, but for the time being, it appears likely that a workplace policy prohibiting the possession or use of marijuana would not be illegal under I-502.
Additionally, commercial drivers license (“CDL”) requirements are federal, and given the Drug Free Workplace Act and other federal requirements, there is support for employers covered by these laws if they have consistently applied their policies.
OMW Employment Law Blog 