January 06, 2014

What Initiative 502 Addresse

1. Allowed personal use

• Less than one oz. of marijuana
• Age 21 and older
• May not be displayed or used in public
• May not be taken out-of-state
• Advised to avoid federal facilities

Public Display or Use

1. I-502 specifically prohibits public use or display
2. It even regulates the signage that retailers can use
3. Marijuana products may not even be consumed in marijuana retail stores (i.e.: pot bars not allowed)

 - No change to penalty for public use/display

• Same penalties imposed
• Criminal violation (but not crime) if less than 1 oz.

Authorized Sale and Production

1. Licenses to be issued for growers, packagers, and retailers through the Liquor Control Board
2. One-year rule-making period that will create rules governing each party in the supply chain (recent rules published)
3. Not legal to sell, package, or grow until after the rules are in place

• Sales will be allowed by authorized retailers only
• 25% tax imposed at each level

Criminal Conduct Regulated

• DUI law updated
• Purports to impose “per se” limit of THC in blood for purposes of DUI law
• Sets level at 5.0 nanograms of Delta-9-THC
• Typically out of body 2-3 hours after use
• Correlation to impairment??
• Find and watch KIRO’s story from February 2013 on marijuana use and driver impairment

Drug-Testing Issues for Employers

• Typical policy sets limit at 50-nanograms of carboxy-THC per milliliter of urine
• This standard actually has little to do with impairment
• Marijuana used in the past 7-10 days typically triggers a positive test
• Test detects carboxy-THC, not active THC, which is the component that causes the “high”
• Some HR Managers are researching other options for testing for impairment, such as testing for Delta-9-THC (the psychoactive component of THC)

What I-502 Does Not Address

• Interplay with federal drug laws

1. Federal Government has announced intent not to enforce federal marijuana laws
2. However, employers funded by federal funds still need to comply with Drug Free Workplace

• Does not amend or repeal medical marijuana laws (see RCW 69.51A)
• Workplace regulation of marijuana

Impact on Employment Policies

• I-502 makes absolutely no mention of employee/employer impacts
• In short, I-502 does not change anything for employers
• However, employers should be aware of how the legalization may impact your written policies

Off-Site Use

• Legalization = The waters will be tested
• The question is: What legitimate interest does an employer have in an employee’s off-duty private use of substances?
• Consider the same question with alcohol or tobacco
• The only difference between alcohol or tobacco and marijuana is that possession and use of marijuana is still prohibited under federal law

Medical Marijuana

• Nothing changes

1. Must grow own
2. Up to 24 oz.
3. Up to 15 plants
4. No age limit
5. Valid doctor’s note for use

Roe v. Teletech Customer Care (WA Supreme Court 2011)

• Employee was terminated after failing a drug test required by employer’s substance abuse policy
• Medical marijuana users are not protected from adverse hiring or disciplinary decisions based on an employer’s drug test policies
• Applies regardless if use is on or off the clock

Roe v. Teletech: Caution Regarding Disability

• Plaintiff did NOT allege disability discrimination or reasonable accommodation claims under WLAD
• Therefore, no express ruling from the WA Supreme Court on that issue
• The court did say that it would be incongruous “to allow an employee to engage in illegal activity” in the process of finding a public policy exception to the at-will employment doctrine
• Court also noted that the State Human Rights Commission indicates that “it would not be a reasonable accommodation of a disability for an employer to violate federal law, or allow and employee to violate federal law, by employing a person who uses medical marijuana.”
• But still an open (possibly) issue, and could be revisited

Federal Law: ADA

• Excludes use of illegal drugs from accommodations to consider
• Marijuana is still listed as federally controlled substance • Colorado’s law says it does not “require an employer to permit or accommodate the use”
• I-502 lacks comparable language
• Other jurisdictions have routinely refused to apply disability laws to medical marijuana use
• But will this change?

Suggestions for Reviewing Policies

• Have a written policy covering drugs and alcohol
• Policy should be clear that it covers drugs that are illegal under local, state, or federal law
• Ensure you have a zero tolerance policy
• Prohibit any detectable amount (move away from “under the influence” language for testing reasons)
• Consistent policies even if workers are in multiple states
• Engage in drug testing of applicants and employees

What About Tolerant Employers?

• Consider sticking with “under the influence” standard in your policies

1. Be aware that it is highly unusual for effects of THC to last more than 6 hours (typically 2-6 hrs)

• Prohibit possession at workplace
• Make sure your lab will not test for marijuana as part of its default panel screen
• Ensure no federal contracts
• Consider safety risks

Author: Brian K. Keeley

• Attorney with Schwabe, Williamson & Wyatt, P.C.
• Practices in employment litigation and counseling
• Represents employers in lawsuits and administrative claims over employment issues
• Represents employers in claims brought by employees with the EEOC, the Washington Human Rights Commission, and state and federal court
• Advises, counsels and trains employers how to avoid employment disputes by putting into place the appropriate policies and properly handling employee complaints before they rise to the level of litigation
• Named a Rising Star in employment and labor law, Washington Law & Politics magazine 2009 to 2011
• J.D. degree, University of California, Davis School of Law; B.A. degree in economics, Colorado College

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