Availability of legal, recreational pot in Washington state is a big change. What hasn’t changed is employers’ ability to test their employees for marijuana use. Even so, employers should check their drug policies in light of the new pot law.
Drug testing that includes marijuana is still legal for Washington employers. The new weed law says nothing about employer drug testing, so previous law and court decisions regarding that remain in effect. A Washington Supreme Court case from 2011 upheld an employer’s right to fire an employee for use of medicinal marijuana.
Just because it’s legal now doesn’t mean employers can no longer require employees not to use it. Employment lawyers suggest it may be a good idea for companies to remind their employees of that.
But here’s one way companies may run afoul of the new law: drug-free workplace policies that refer to “illegal drugs.” Recreational marijuana is now legal in two states, and medical marijuana is legal in about half of the 50 states. And more legalization may be on the way. Alaska is set to have a ballot initiative on the subject this year, and a petition to put the question to voters in Washington DC has just been completed. Proponents of recreational pot are targeting even more states with legalization efforts.
So companies in these states should update their policies to reflect zero tolerance for legalized pot.
And speaking of zero tolerance, the federal government’s law regarding that is still in place, too. Companies that receive federal contracts and the federal government itself still have zero-tolerance pot rules.
Commercial Driver License (CDL) holders are still regulated the same by the U.S. Department of Transportation.
In Washington state, CDL holders uses a 15ml (milliliter) threshold in urine tests.
However, impairment for others is considered to be 5ng (nonograms) which is determined by a blood test for active metabolites. In general, active metabolites fall to about 2ng within 4-6 hours of use, but this varies from person to person.
One final note: Just because Washington law regarding drug testing for pot hasn’t changed doesn’t mean someone won’t go to court to try to prove otherwise. It would appear employers have the advantage on this issue, but there are no guarantees. Strangers things have happened.