How WA new marijuana law impacts employers

Recreational Marijuana in Washington: Now What?
By Paula A. Barran and Iris K. Tilley
Barran Liebman
Oregon Law Firm

As of this writing, it appears that Washington is going to pass Initiative Measure 502 which begins: “The people intend to stop treating adult marijuana use as a crime and try a new approach.” This will result in a new law that will, again, put employers in the crosshairs of marijuana use and raise questions about the scope of their substance abuse policies and drug testing.

Initiative Measure 502 is a broad licensing and regulatory provision that does not address workplace issues, except to recommend that safety be a subject of study. The state already has a separate medical marijuana law; in Roe v. Teletech the Washington Supreme Court concluded that the Medical Use of Marijuana Act did not limit the right of an employer to discharge an employee for the use of medical marijuana, even when authorized by the state law.

The opinion also notes that at-will employment has been the default employment rule in Washington since at least 1928; in that context, the marijuana law does not proclaim a public policy prohibiting the discharge of an employee for medical marijuana use and that “Washington patients have no legal right to use marijuana under federal law.”

There will no doubt be challenges and claims related to the new law so it is always challenging to predict what legal developments there might be. For now, however, it does not appear that Washington employers are going to need to make changes to their substance abuse policies.

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