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The marijuana vote: How does new law affect drug policies?

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Washington voters added a little varnish to the state’s liberal reputation in November when they joined Colorado voters in legalizing recreational use of marijuana.

As surprising it may have been for some, the vote wasn’t even close. Initiative 502 passed with more than 55 percent of the vote.

Passage of the initiative brought national attention to the state — and raised a number of questions for everyone from federal prosecutors to local business owners.

How does the law change a company’s human resources policy? What happens if an employee shows up to work under the influence of marijuana? What should employers be doing as a result of I-502?

Greg Hendershott, a partner at the Seattle law firm Davis Wright Tremaine, provided some answers recently during a seminar sponsored by the Association of Washington Business titled, “Decriminalization of Marijuana and the Workplace.”

A webinar on the same topic will be held Jan. 15.

The short answer, Hendershott said, is that little has changed in the workplace as a result of the November vote.

Marijuana still is illegal under federal law. Employers can still test workers for drugs, including marijuana. They can still enforce drug-free workplace policies. And there is no duty for employers to accommodate medical marijuana use under Washington or Oregon law, or the federal Americans with Disabilities Act.

Fundamentally, if you want to say nothing has changed, that’s a pretty accurate statement,” Hendershott said.

That doesn’t mean that employers should sit back and do nothing. At a minimum, employers should review their workplace policies and, if necessary, consider clarifying the definition of “illegal drugs.”

Employers with workers who are represented by labor unions may not be able to unilaterally change their policy, and unions may request changes, too.

Once they have updated their policy, employers should re-circulate the policy to employees and remind workers that the policy still applies to marijuana use, possession and being under any influence.

A potential complication for employers is the difference between a positive drug test and an impaired worker. Marijuana can remain in someone’s system for two or three weeks after use, meaning someone who used the drug at home on a Friday night can test positive several days later, long after the influence has worn off.

That means employers may want to decide how aggressive they want to be about enforcing drug-free workplace policies.

The question could be decided by safety concerns. If safety is an issue, there is no question — err on the side of caution.

At the end of the day, things may not have changed much, despite all the attention around the issue. The language in the I-502 is actually quite restrictive, Hendershott said.

Based on what I’ve heard, I think the perception is that it’s much more of a free-for-all than it really is,” he said.

Don Brunell is president of the Association of Washington Business, the state’s chamber of commerce.

For more information about the Jan. 15 webinar “Legalized Marijuana and the Workplace,” visit bit.ly/AWBwebinar

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