On November 5, 2012, voters approved Initiative 502 (I-502) which legalized marijuana use in Washington State. Under I-502, which goes into effect December 6, 2012, adults age 21 and over in Washington State can no longer be arrested under state law for possessing either 1 oz. of useable marijuana, 16 oz. of marijuana-infused product in solid form, or 72 oz. of marijuana-infused product in liquid form. I-502 does not change Washington State employment law, which allows for a drug-free workplace and for employee drug testing. In fact, I-502 does not provide any protection for employees who use marijuana.
Marijuana remains illegal under federal law, and is classified as a Schedule I controlled substance under the Controlled Substances Act (CSA), 21 U.S.C. § 801-971.
In Roe v. Teletech Customer Care Mgmt.,[i] the Washington Supreme Court held that Washington’s Medical Use of Marijuana Act (MUMA) did not provide a private cause of action for employees discharged for violating an employer’s anti-drug policy, even if the employee lawfully used marijuana pursuant to MUMA. The court reasoned that since marijuana remains illegal under federal law, employers in Washington are not required to permit illegal activity in the workplace.
In an article published on November 17, 2012, the Seattle Times[ii] reported that the City of Seattle informed its employees that the city was maintaining its drug-free workplace policy because it receives federal funding, and federal law still bans marijuana, I-502 notwithstanding. The same logic applies to contractors who perform work on federally funded projects.
Based on the reasoning in Teletech, employers may maintain drug-free workplace policies which prohibit employees from using marijuana, or other illegal substances even if those substances are legal under state law. Most state government employees will still not be permitted to use marijuana regardless of I-502 decriminalizing certain amounts of marijuana usage. Private sector employers should update their drug-free workplace policies to inform their employees that use of any illegal substances under state and federal law is cause for termination I-502 notwithstanding, particularly for projects funded by the federal government.
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[i] 171 Wn.2d 736, 257 P.3d 586 (2011).
[ii] http://seattletimes.com/html/localnews/2019705128_marijuanawork18m.html?prmid=4939