Now that Initiative 502 has legalized recreational marijuana in Washington State, employers are wondering what they should do. Many labor and employment law attorneys are also wrangling with that question. Some are looking to a recent workplace legal case that went to the Washington state Supreme Court in 2011, when a woman claimed she was wrongfully terminated from her job at a call center following a positive test for marijuana. The controversy surrounded the fact that she was legally allowed to use the substance under Washington state’s Medical Use of Marijuana Act.
The woman involved in the state Supreme Court case, Roe v. TeleTech Customer Care Management, worked at a call center for Sprint Nextel Corp, and therefore her job did not include operating heavy equipment or any other task that would involve an on the job safety issues. However, her company had a zero-tolerance drug policy for all employees. The Supreme Court’s decision was that employees who use legal medical marijuana can still be fired from a position if their use violates the employer’s substance-abuse policy. But now that Washington residents have voted to expand legal status to recreational use of marijuana, what kind of showdowns can we expect in the workplace? Seattle Labor Attorneys at Emery Reddy don’t expect that the initiative will have any affect on an employer’s right to continue drug testing. However, what it will to do is produce a lot of confusion, particularly for employees who might think, “Now I’m allowed to smoke pot and go to work!”
That is probably a mistaken assumption, since existing law is clear regarding employers’ right to enforce zero-tolerance drug policies in the workplace. There are multiple reasons that employers have no-tolerance policies for drugs, including workplace safety for positions that require workers to operate equipment. Productivity can be a consideration as well, along with concerns for the health and absenteeism of a workforce. Often, it is clients of a company who require drug testing, as was the case for the company sued in Roe v. TeleTech. Federal and state laws also apply to truck drivers and machinists at Boeing who work on federal government contracts; these contracts entail compliance with the federal Drug Free Workplace Act.
Yet even though employers can still fire their workers for violating drug policies, businesses might benefits from examining their substance-abuse and drug-test policies more closely. Here are a few steps employers can take:
1. Have a written policy that covers substances like drugs, alcohol, and even performance-impairing prescription drugs.
2. Ensure that the policy covers any substances that are illegal under state and federal law; because Washington’s legalization violates federal law (under which says marijuana remains illegal), employers should cover the whole spectrum.