It’s been weeks since recreational marijuana use has been legalized in Washington and Colorado, but until now, many are still asking how the new law will impact drug-free policies in schools and businesses. Although some universities and organizations have already issued statement that they are not going to change anything in their drug testing policy, others continue to consult with their lawyers and await for further announcement from the government.
Still, one important question remains: how do employers in these two states handle the tricky issues associated with the passage of Amendment 64 in Colorado and Initiative 502 in Washington which collide with the federal government’s drug laws?
As often stressed in various references and by the government, marijuana is still a Schedule 1 substance and the Justice Department earlier maintained their “enforcement of the Controlled Substances Act remains unchanged.”
However, if one will review the provisions of Colorado and Washington State’s marijuana legalization measure, there was nothing that specifically address employers’ rights to drug test their employees. Colorado’s Amendment 64 states “Nothing in this section is intended to require an employer to permit or 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.” Similarly, driving under the influence of marijuana remains prohibited.
In Washington, Costco said “Drug testing is a requirement to be hired. Nothing will change. Marijuana is illegal under federal law.”
The Boeing Company also disclosed similar stand, saying “Use of marijuana by Boeing employees is prohibited regardless of state law.”
As employers need to decide how to approach Washington and Colorado’s new marijuana laws, a legal expert, Michael W. Groebe from Foley & Lardner LLP, with experience representing employers before state and federal courts and administrative agencies offered a sound advice.
“First, employers should continue to focus on the employeeâ€™s conduct while at work. If the employee is under the influence or using marijuana at work, the new laws are unlikely to protect them from discipline,” Groebe explained. “Second, employers should remember that marijuana remains prohibited under federal law. Even with Coloradoâ€™s â€œLifestyleâ€ law that prohibits employers from disciplining employees for engaging in lawful conduct while off-duty, federal law still makes the use of marijuana unlawful.”
Additionally, if an employer requires drug testing, including the policy in the employee handbook and informing job applicants and existing employees could prevent the organization from wasting money on pre-employment drug tests.