Will Employees Still be Drug-Tested for Marijuana?
In November's elections, Colorado and Washington state legalized the recreational use of marijuana. Many employers, however, that now prohibit their employees from using marijuana plan to continue prohibiting marijuana use – and to continue doing drug testing.
One potential issue that employees' lawyers may seek to exploit has to do with the imprecise nature of marijuana testing. Most of the tests don't differentiate between recent and remote drug use. An employee who tests positive may have been impaired that day at work, or the employee may have used marijuana several weeks earlier, at home – a use that will soon become legal under state law.
An attorney for the Teamsters told the Seattle Times that the new law “changes everything,” and that "[w]e're clearly headed for a showdown with some employers." In 2011, an arbitrator in a Washington state case involving a worker fired for medical marijuana use – at a time state law allowed such use – found that "legitimate interest in an employee's off-duty private use of psychoactive substances is considerably less than clear." The same reasoning would apply, the Teamsters attorney argued, to off-duty, recreational use of marijuana once that becomes legal as well. Other cases, however, including one before the Washington Supreme Court in 2011, have held that employers do have the right to fire employees for medical-marijuana use, even though state law allows the use.
Most Seattle employers who had bright-line drug policies are planning to continue those policies. Employers that receive federal funding are especially likely to continue to insist on zero-tolerance policies, given that federal law still classifies marijuana as a Schedule I prohibited substance, the same category that contains heroin and LSD.
Although the legalization dates are coming soon – December 6 in Washington and January 5 in Colorado – it will likely take employers more time to sort out exactly how they will respond to the new law.
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