Can workplaces still test for legal marijuana use?
In 2012, Washington state made history by becoming the first state to legalize recreational marijuana use. Washington’s nature-loving, laid back, open-minded culture had long made our state a stronghold for cannabis lovers. Medical marijuana has been legal in WA since 1998, but the 2012 decision still changed everything. Now, cannabis users in Washington have countless options for enjoying marijuana safely. However, even though weed may be legal, one big question remains for marijuana lovers: what about a workplace drug test?
Employers can still test for marijuana use in Washington.
Unfortunately for cannabis fans, legalization of recreational and medical cannabis does not mean an end to workplace drug testing for marijuana use. The reason is simple: employers are still allowed to enforce their own “drug free workplace” policies for any drugs that are illegal under federal law, a category that still includes marijuana.
At Evergreen, we’ve looked closely into this issue and explored a range of expert resources and unfortunately, they all draw the same conclusion: employers can still set workplace policies that restrict cannabis use and can use workplace drug testing to enforce those policies.
If you apply to or work at a drug free workplace in Washington state and use cannabis, you should carefully consult their drug use policy and be prepared for the possibility that you could be tested for marijuana use and could be fired or denied hiring, even for legal use that occurs outside of your workplace.
Medical marijuana use is no exception for workplace drug testing.
This freedom on the part of employers to continue testing for marijuana use extends to medical marijuana as well. The team of drug testing experts at the Physician-owned National Drug Testing, Inc. concur in their guide to Washington’s drug testing laws: employers in Washington have “no duty to accommodate medical marijuana in drug free workplaces under Washington law even when used outside workplace.”
Washington employers’ ability to drug test for medical marijuana use was reinforced by a Ninth Circuit Court of Appeals decision in 2011. In the full decision, the court rules against “Jane Roe” who was fired from her job working for TeleTech Customer Care Center in Bremerton after testing positive on a drug test for marijuana use. The employee used medical marijuana legally and according to a physician’s recommendation to treat migraines, but the court ruled that TeleTech still had the right to enforce their policy requiring a negative drug test result from all employees.
What can cannabis users in Washington do about workplace drug testing?
Unless further legal changes or challenges take place, the best thing marijuana users in Washington can do is clearly understand the fact that they can still be drug tested for cannabis in drug free workplaces. I-502 legalized recreational marijuana, but did not address drug testing, so for now, workplaces can still enforce any policies that align with federal law.
However, cannabis users should still know their rights and be ready to consult a lawyer if an employer’s policies seem to go beyond typical drug free requirements. This is especially true when an employer is attempting to access your confidential medical information.
While drug testing policies vary from company to company, you should be especially aware of the possibility of drug testing from employers who contract with the federal government. And remember that private employers have the broad right to restrict employee behavior (even legal behavior), so you should always confirm that your lifestyle choices align with potential employers’ rules and expectations.
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