The State of Washington is an exciting place to be this year.  On the brink of approval by voters are a referendum to approve the Marriage Equality Act legalizing same-sex marriage, and a citizens' initiative (I-502) to legalize and regulate (i.e., tax) recreational marijuana use and possession by persons 21 and over.

Full disclosure:  I am an attorney who represents employers in labor negotiations and employment law matters.  Part of my job is advising employers on how to develop workplace drug and alcohol policies and discipline employees who are found to violate those policies.

As a management-side labor lawyer, my take on I-502 is not what you would assume.  More below the fold...

It's assumed I would oppose legalization of marijuana so as to preserve the broadest permitted scope of employers' rights of random drug testing.  Random testing is an employer’s friend, because it is quick and effective and does not require proof.  I have come to the conclusion, however, that the benefits of legalizing marijuana use far outweigh the potential pitfalls, even for employers.

I was proud, as a Washington State citizen, to read today that the campaign to legalize and tax recreational marijuana sales for those over 21 years of age is launching a new television ad campaign tomorrow:

In one of the ads, two former top Justice Department officials in Seattle, U.S. attorneys John McKay and Kate Pflaumer, join the former head of the FBI's office in Seattle, Charles Mandigo, in urging voters to approve Initiative 502. All three have previously come out in favor of the measure, which would set up a system of licensed marijuana growers, processors and standalone retail stores, and McKay is a sponsor of the initiative.

Much has been made of the way law enforcement, public health doctors, and prevention and treatment experts have largely come out in favor of I-502.  Less discussed is how the proposed law would impact labor and employment law relating to employers’ and employees’ respective rights regarding workplace drug and alcohol policies.

Where employment laws are concerned, drugs and alcohol are not the same thing.  Random drug testing is generally permissible without a showing that the person being tested is specifically suspected of using; that’s why it’s called “random.”  When it comes to testing for the presence of alcohol, however, an employee may be sent for a breathylizer or blood test only if there is a reasonable suspicion that the employee is high while working.

If approved, Initiative 502, Washington’s citizens initiative to legalize recreational marijuana use and possession, is significant in that Washington employers will no longer be entitled to randomly test for marijuana use.  Why?  Because marijuana use will be as legal as consuming alcohol.  

Although companies will be entitled to implement all necessary safety rules so that workers are not consuming or being under the influence on the job, there will need to be some reasonable suspicion – e.g., a workplace accident, erratic behavior (presumably more than simply complaining of the “munchies”), or some other observable facts indicating – that the person is under the influence of drugs, before an employee is required to submit to a test for the presence of marijuana in his or her bloodstream.

There are several reasons moving marijuana over to the heightened "reasonable suspicion" side of things makes sense.  The presence of THC in the blood is detectable days, even possibly weeks, after a person uses marijuana.  It is difficult to determine with any reasonable accuracy whether a person smoked a joint an hour ago versus a day and a half ago.  If a person is evidently high at work, such as behaving stoned, appearing to lack motor skills, etc., the employer has every right – and will continue to do so after I-502 becomes law – to take all disciplinary measures necessary to prevent a further occurrence of this behavior, including terminating the person’s employment.  Random testing of pot use simply has minimal if any positive benefit for employers. Conversely, businesses have for decades felt the impact of hundreds of thousands of unnecessary arrests for marijuana use or possession, taking workers away from their jobs and putting them in jail instead of putting their sweat toward the economy.  Finally, medical marijuana use has been legal in Washington for a couple of years now, and this has created a great deal of confusion among courts, enforcement agencies, employers, employees and their attorneys about whether this kind of lawful use of drugs, if detected by a random test but otherwise unsupported by actual facts indicating the employee was affected by the drug's presence, should even be punishable by an otherwise neutral workplace drug policy.

For all of these reasons, I urge all citizens of my home state, and in particular employment and labor lawyers whether management or employee side, to join the vast majority of law enforcement officials, public health doctors, and prevention and treatment experts in supporting Initiative 502.  

Let's keep the sanity spreading!

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