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Legalized marijuana and workplace drug testing


images (2)The election is now over and history has been made by Washington and Colorado, the first states to legalize the recreational use of marijuana. Although our state, along with 16 others and the District of Columbia, had already approved the legalization of medical marijuana, this new law is unprecedented in its scope. It appears to have employees and employers scratching their heads and asking, “What next?” as state and federal laws collide.

Let me state up front: I am not a lawyer, and this is untested legal ground. But before you throw up your hands in frustration or confusion, we can look at laws and legal precedents to provide us with some guidance.

Many businesses already conduct pre-employment drug testing, as well as random and/or post-accident testing. In fact, a study in 2011 by the Society for Human Resource Management revealed that 57 percent of the organizations surveyed conducted pre-employment drug tests on all new hires. Many of those surveyed reported that drug testing improved absenteeism and productivity. Other motivators included better safety records and lowered insurance rates.

Drug testing has been around since the mid to late 1980s, following the drugs, sex and rock’n’roll years of the ’60s and ’70s. In fact, during the 1980s, laws were passed mandating drug testing by businesses that are regulated by the U.S. Department of Transportation (such as trucking and airlines) and by the federal government. And the Drug-Free Workplace Act required federal contractors to implement drug-free workplace policies and programs. In 2010, the Department of Health and Human Services reported that 8 percent of full-time employees (9.6 million people) used illegal drugs in the previous month. Clearly the issue remains an important one for employers.

Now that our state has legalized not only medical marijuana use, but also recreational marijuana use, how do we proceed as employers, and do other laws come into play?

The Americans with Disabilities Act (ADA) provides protections to those who meet the definition of having a “disability.” Could this include those who have substance abuse problems? As I often say in my articles, the answer is yes, and no.

Many of our employers administer pre-employment drug tests. These are not considered medical exams under the ADA, and addiction to illegal drugs is not considered a disability under the ADA requiring accommodation. However, employees utilizing prescription drugs to treat a disability are protected under the ADA and must be accommodated. For example, an employee could reveal their need to use a prescription medication that inhibits their ability to drive. A reasonable accommodation could be to pair them with a co-worker to ride with to meetings and events, or to allow them to participate via teleconferencing whenever possible.

How does medical marijuana fit in? A couple years ago, a Bremerton company, Teletech, refused to hire a job-seeker who disclosed that she had a prescription for medical marijuana, which caused her to fail the pre-employment drug test. This carefully watched case wound its way through our courts. The final result was a ruling which basically stated that the use of marijuana, albeit with a medical prescription, was still the use of a drug which is illegal on the federal level. Therefore, the employer had the right, under its drug-free workplace policy, to deny employment to an applicant who tested positive for the use of illegal drugs.

There have been several other court cases challenging these practices, and the courts have consistently upheld businesses’ rights. Recently, the liberal Ninth Circuit Court of Appeals rejected a petition to rehear an argument that medical marijuana is protected by the ADA. The court recognized the evolving views on the acceptability of medical marijuana, but in the end, stated that “Congress has determined that, for purposes of federal law, marijuana is unacceptable for medical use.” Therefore, it was not accorded protection under the ADA.

Washington voters have now created an even more complex situation for employers by passing Initiative 502, legalizing the use of recreational marijuana. While the initiative requires the state to define what constitutes impairment under the law, the fact remains that marijuana is still illegal at the federal level. The tests for THC levels in the blood may become more accurate and discerning, but in general, employers are not usually testing for impairment, but rather for usage of the substance, and THC remains stored in fat cells for up to about 30 days.

We can only speculate about whether the new law will change what employers can require of their employees, but it is logical to expect that the courts will apply the same principles to the usage of recreational marijuana and employment as they have to medical marijuana. Until this is resolved, it appears that employers may continue their practice of weeding out applicants and employees who test positive for THC.

The ADA does provide protection to recovering drug addicts. This means that employers cannot discriminate against someone based on their past usage of drugs. For example, an employer learns that an employee is a recovering drug addict, and based on that information passes over him for a promotion to management, fearing that the increased stress would cause a relapse. This could be illegal discrimination under the ADA.

Any time that an employer deals with information regarding an employee’s medical history, it is imperative that this information be kept confidential and separate from their employment records. This includes information about drug and alcohol tests. Share the information and test results with others on a need-to-know basis only.

Worker safety, employee privacy, personal health, team productivity, employer liability, government regulations — the list of concerns and rights seems almost endless as we ponder the issues surrounding drugs and the workplace. One thing, though, seems almost for certain: lawyers will be kept very busy over the next couple years as we sort these issues out!

As of Dec. 6, residents of Washington state have the right to use recreational marijuana. Employers need to decide now how they will approach this. If your business does drug testing, how will you view a positive result for marijuana? Will you give marijuana-using employees and applicants a pass, or will marijuana usage be a bar to employment?

A lot of people in our state now believe they have the legal right to use marijuana. If usage violates your drug-free workplace policies, consider informing your employees now so they are aware of the consequences. You may also need to revise your employee handbook to include specific information about marijuana usage. Letting your job applicants know upfront your company’s policy could prevent you from wasting your money on pre-employment drug tests that come back positive for marijuana usage.

The passage of I-502 is an opportunity for all of us to review our drug-free workplace policies. And one thing is for sure, the courts will become involved as we sort through all of this. The Teamsters have already warned that a showdown between employees and businesses is coming. You, like me, probably hope to be on the sidelines watching the showdown, rather than be in the ring with those doing battle!

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