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Employees, marijuana and the law

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Last month, Washingtonians voted to decriminalize the use of marijuana by the passage of Initiative 502. I-502 makes it legal to possess as much as one ounce of pot. However, it does not require employers to accommodate employee use of the drug. This paradigm has left many employers wondering — how can I regulate employee use of marijuana?

I-502 appears to treat marijuana use similarly to that of alcohol: you have to be 21 years or older to be in possession of the drug and it is illegal to drive after marijuana use. One notable difference between marijuana and alcohol is that marijuana has an estimated 24-hour half-life; meaning that if you enjoy a Sunday barbeque and a joint, you will still be under the effects of the drug come Monday morning.

If you are a business owner and concerned about your employee’s using marijuana on the job, there is hope in that I-502 does not require employers to accommodate marijuana use. Employers with these concerns should take initiative and regulate the pot use by employees. Communication is key: educate your employees about this fact and let them know that marijuana use within 24 hours of their work shift is unacceptable.

The initiative decriminalizing marijuana use in Washington State will take effect on December 6, 2012, amid much speculation on how Congress and the federal government will react. Regulations detailing state-approved sales and manufacturing of the drug are expected to arrive sometime in December 2013. The immediate question for employers is: what policies can and should you have in place to ensure that employees are not under the influence of marijuana while at work?

Review existing company policies: The first step is to do a thorough review your company’s current drug policy. If the policy says that drug use that is “illegal” will not be tolerated, it will need to be revised so that the policy includes marijuana use which is no longer technically “illegal” without further clarification.

In order to make the policy more clear, consider adopting a policy that prohibits the use of any drugs considered illegal “as a matter of federal, state, or local law, including marijuana.” The revised policy language now clearly expresses to employees that they may be disciplined for marijuana use.

If you run a small business and do not have written company policies on drug use, you should consider instituting such a policy that regulates drug use by employees. In order to bind the employees to the policy, the employees could sign the policy and a statement indicating that they have received a copy of the policy, understand its contents and agree to be bound by the terms. This communication and clarification helps to prevent future disputes over company drug policy and employee marijuana use.

Communication: After the company’s policies have been revised, verbally communicate with employees about what effect, if any, the change in law will have on the their behavior in the workplace. It may be advisable to hold a company meeting. Be prepared to answer questions from employees on what is and is not allowed.

Enforcement: Other than visible impairment, the only viable method of marijuana detection is to subject employees to drug testing. Since marijuana does not flush out of one’s system like alcohol, random drug tests could implicate an employee who is only using it legally on the weekends.

It is possible that an employee could fail a drug test without being currently under the influence. In light of this fact, it is suggested that rather than subjecting employees to random drug screenings, focus on impaired behavior. Your business will be best served by focused attention to behavior and issues, rather than random selection.

While we wait for the federal government and Congress to act after Washington’s decriminalization of marijuana use, revisions to company policies are necessary if you wish to regulate employees’ use of the drug.

Communicate your views on the issue to your employees and make sure that they understand where you are coming from. Taking initiative and instituting a policy before an issue arises will streamline disciplinary options and protect the business from disgruntled employees.

While you cannot stop an employee from lighting up on their own time, you can regulate when it is used in relation to your business. Pot may be legal in Washington, for the time being, but it does not need to be tolerated in the work environment.

Lindsey Wehmeyer is an attorney with Jeffers, Danielson, Sonn & Aylward, P.S., a Wenatchee law firm.

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