OK, this is something we never contemplated...straight from the Seattle Police Department's Blotter, we bring you Marijwhatnow? A Guide to Legal Marijuana Use In Seattle.
The guide offers an FAQ for citizens about the recently enacted Washington law, which decriminalizes possession of small amounts of marijuana by adults over the age of 21. And Washington is not alone... in Colorado, 55% of the voters recently voted to legalize individual possession of small "recreational" amounts of marijuana. Contrary to what you might think, the vote wasn't all cast by erstwhile hippies and young pot aficionados - some conservative proponents cited the potential billions in tax revenue and the benefits of unclogging the court systems and freeing police time by removing nettlesome petty criminal prosecutions
These voter approvals for recreational use mark a new twist - prior legislative approvals have dealt with medical use of the drug. Last week's election saw other marijuana ballot initiatives in this vein - medical marijuana use was approved in Massachusetts, making it the 18th state (plus DC) to give the nod to medical marijuana use; however, Arkansas voters nixed their ballot initiative 51% to 48%.
The Devil is in the Details
Even with state initiatives, marijuana is still illegal at the federal level. Plus, as with most things, the devil is in the details and most states are scrambling to figure things out. But the train has left the station and is definitely gathering steam so this is an issue that employers need to take seriously. In the Seattle Police guide linked above, we note that the police are looking at the employment-related implications of the law, as well as other matters.
Q. Will police officers be able to smoke marijuana? A. As of right now, no. This is still a very complicated issue.
Q. If I apply for a job at the Seattle Police Department, will past (or current) marijuana use be held against me?
A. The current standard for applicants is that they have not used marijuana in the previous three years. In light of I-502, the department will consult with the City Attorney and the State Attorney General to see if and how that standard may be revised.
"Complicated issue" sums things up nicely. We've compiled some commentary on the matter from various employment law authorities (and will no doubt bring you more in the future!)
Over at the LexisNexis Employment Law Community, attorney Donna Ballman reminds employees that Legal Marijuana Use Can Still Get You Fired. She cites case law on issues ranging from drug testing to the ADA. Most interestingly, she also discusses state laws that prohibit discrimination against medical marijuana users and prohibitions against termination/discrimination based upon an employee's lawful activities off-duty.
Vance O. Knapp writes about Amendment 64: how do employers address the legalization of marijuana in Colorado? He discusses this new law and the state's prior law allowing for medical marijuana use, and offers thoughts for employers. He cites this passage from Colorado's law:
Nothing in this Section is intended to require an employer to permit or to accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.
His post appears at Lexology, which has a good library of employment-law related articles on medical marijuana
Greg Lamm of the Puget Sound Business Journal spoke with labor and employment attorney James Shore, who offered five tips for employers to prepare for the new law. You should read his comments in full detail, but here's a quick summary of key points:
1. Have a written policy covering substances such as drugs and alcohol.
2. Make sure that policy covers any drugs that are illegal under state, federal and local law
3. Make sure that the policy prohibits any detectable amount of illegal drugs, as opposed to using an "under the influence" standard.
4. Employers with multiple locations in multiple states should have one consistent policy
5. Be prepared to see marijuana come up in collective-bargaining and termination negotiations with unionized employees.
We've also dusted off a few prior posts that we made on medical marijuana because they outline some issues employers will need to consider.
You can find more of our blog posts about pot by searching "marijuana."