Washington’s Marijuana Laws: Can Employers Still Drug Test?

In November 2012, Washington voters passed Initiative 502, which decriminalized marijuana in certain instances and created a system for distribution regulated by the Washington State Liquor Control Board.  This new law, along with Washington’s Medical Use of Marijuana Act (i.e., medical marijuana), has created questions and concerns for all employers.

There are a number of questions that have arisen from these new marijuana laws in Washington.  Employers in the hotel and lodging industry should visit: http://www.walodging.org/resources/news_view.php?id=666.  Many of those questions  are addressed in that article.

One of the biggest issues for all Washington employers is the effect this law will have on their drug-testing policies.  These laws do not limit an employer’s right to establish a drug-free workplace.  Employers still have the right to establish drug testing procedures in the workplace. Employers must, however, ensure they are drug-testing properly.  There are several key aspects in their drug-testing policies every Employer should review.

First, Employers should review their handbooks and policies. Although an employer is permitted to drug test, the employer is generally expected to administer and adhere to its own policies. Employer policies should prohibit the use of illegal substances under all applicable federal, state and local laws, not simply state that the use of illegal substances is prohibited.  The employer must also be aware that certain positions may require different standards.  For example, a Commercial Driver’s License (CDL) driver position must adhere to Department of Transportation drug-testing requirements.

Next, Employer policies should define the term ‘under the influence.’ In most cases, drug tests are administered using a urine sample, which detects the release of THC (the active ingredient in marijuana) in the body. Because THC is stored in the person’s fat cells, it can be detected in a person’s body for days or even weeks after use. As a result, an employer should define how a test result determines when a person is under the influence.

Finally, Employers should review their policy regarding the use of prescription drugs. The policy should limit when prescription drug use is permissible. For instance, the policy may state that prescription drug use is permitted, so long as the drug is used as prescribed and legal under federal, state and local laws.

Marijuana issues in Washington are growing increasingly complex and subject to sudden change. All employers must remain vigilant and work with their human resources specialist and/or their attorneys to ensure they are ahead of the haze.

Christopher L. Hilgenfeld is a Washington and Oregon licensed attorney representing Employers in labor and employment laws.  For more information Chris may be contacted at chilgenfeld@davisgrimmpayne.com, or at (206) 447-0182.

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