Can Washington employers enforce a drug-free workplace now that marijuana is legal under I-502? That is the question that is creating conflict between marijuana advocates and business owners in the Evergreen State.
Marijuana is now legal for adults age 21 and older in Washington, but I-502 does not give any protection for marijuana users who work in a drug free environment. That means that it is still within an employer’s rights to require employees to take, and pass, drug tests in order to keep their jobs.
Workers and unions are beginning to stand up to this idea, given that drug tests don’t determine whether someone smoked marijuana hours, days, or weeks prior to the test or whether their drug use fell on days when they were working.
Senior staff attorney at the Teamsters Local 117 Dan Swedlow told the Seattle Times, “We think 502 changes everything. We’re clearly headed for a showdown with some employers.”
The teamsters union has already challenged the suspension of a forklift operator who was suspended for smoking medical marijuana he was prescribed for gout. The Seattle-based judge ruled in favor of the forklift driver.
The possibility of losing your job for smoking something that is legal is not a consequence that many considered when they voted in favor of I-502. Seattle employment law attorney Michael Subit explained, “I think people who voted on 502 will be really surprised that if you use it in your home, in accordance with the initiative, you can still get fired.”
Pre-employment and random drug screenings are frequently used in Washington for industries that require the use of heavy machinery, such as transportation or construction. It is expected that owners of businesses in those fields will still try to mandate testing for marijuana.
Police officers will also not be permitted to smoke marijuana under I-502, according to Sue Rahr, the head of the Washington Criminal Justice Training Commission. Individuals who have smoked marijuana in the past three years are not eligible to become police officers in Washington, due to the drug’s illegal status on the federal level.
Rahr explained, “The unintended consequences are pretty worrisome at this point. I’ve told my son and his friends: ‘Don’t consider it a green light on Dec. 6 unless you know what you’re doing with the rest of your life.”
It is likely that this conflict will continue to come to a head and inspire a number of lawsuits against employers who fire employees or refuse to hire potential employees for having THC in their system. Some Washington employment law attorneys even anticipate that the state will eventually have to change the language of I-502 to clarify whether it is legal for employers to hold their employees to a no-tolerance drug policy in spite of marijuana’s legal status in the state.