Can a Private Employer in Washington Test Its Employees for Marijuana?

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Yes, even though Washington law permits individuals to engage in the recreational and medical uses of marijuana, a private employer can still test for and prohibit employees from using marijuana as part of its employment drug testing program.

Unlike alcohol and other controlled substances, marijuana can be detected by a drug test for weeks after it has been used by an individual.  An employee may engage in the lawful use of marijuana during the employee’s non-working time but may still fail a workplace drug test.  The legal implications of medical and recreational marijuana are still a developing area of law, but currently private employers are able to prohibit all marijuana usage by its employees.

Washington’s Medical Cannabis Act v. Federal Controlled Substances Act

Washington’s Medical Cannabis Act expressly provides that an employer with a drug-free workplace does not have to allow for the medical use of marijuana.  In a 2011 decision, the Washington Supreme Court held that even though an individual may lawfully engage in marijuana use under state law, employers are not required to accommodate it because marijuana use is still illegal under the federal Controlled Substances Act.  An act that is illegal under federal law is not considered a “reasonable” accommodation for Washington disability law purposes.

Thus, if an employer has a drug-free workplace policy, it is under no legal obligation to allow its employees or prospective employees to engage in marijuana use, even if such use occurs during the employee’s non-working time.

Presumably, the same holds true for the lawful recreational use and possession of marijuana, although the recreational use statute does not include a corollary provision addressing employer obligations.

Employee Handbooks

We recommend Washington employers review their employee handbooks and workplace policies to determine whether it reflects the employer’s position on marijuana.  If the employer’s employee handbook or workplace drug policy does not specifically address marijuana, we recommend that it be updated. It is good practice for employers to engage in regular training to make certain that all employees, especially the human resources personnel and other management and supervisory employees understand the employer’s policies related to marijuana and drug testing.

If you have any questions about employment drug testing or workplace policies, please contact Tamara Roe or any of the experienced employment law attorneys at MPBA.

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