May 2013 Bar Bulletin
Marijuana and the Workplace under I-502
By W. Scott Snyder
With the enactment of I-502, Washington voters took another step in recognizing the societal shift in attitudes toward the use of marijuana. But the laws effects on the workplace are as yet unknown.
Washington statutory and case law strongly support an employer's ability to maintain a drug-free workplace. There are a variety of options open to employers as they implement and maintain drug-free workplaces. Collective bargaining representatives will seek to bargain testing processes and thresholds, and changing societal norms may eventually lead to a reexamination of the public policy arguments first put forward in Roe v. TeleTech.
Washington law closely mirrors that developed in other states. Eighteen states and the District of Columbia have authorized the use of medical marijuana. A significant number of these enactments were by initiative. Washington and Colorado, by initiative, became the first states to decriminalize marijuana use in the November election.
Marijuana remains a Schedule I substance under the Comprehensive Drug Abuse Prevention and Control Act of 1970.1 While the federal government cannot compel a state to enact or enforce a federal regulatory program,2 the federal government may withhold federal funding for failure to comply with federal law or make it a federal offense for a state or local official to fail to act in compliance with federal requirements.3
Enactments such as the Drug-free Workplace Act4 require federal contractors and grant recipients to maintain drug-free workplaces. Similar federal laws govern colleges, universities and healthcare facilities.5 The federal government requires grant recipients and applicants to establish a drug-free workplace program under very specific statutory requirements.
The Washington Supreme Court in Roe v. TeleTech6 determined that the Medical Use of Marijuana Act (MUMA) does not create a public policy right relating to employment. MUMA at the date of the decision provided that "nothing in this chapter requires any accommodation of any medical marijuana use in any place of employment."7
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