Drug Free Business – Statement on recent Marijuana Legalization Ballot Initiative
On Tuesday night, Colorado and Washington state voters passed historic measures to legalize marijuana for recreational use by adults.
By approving Amendment 64, Colorado became the first state to end marijuana prohibition in the United States. Amendment 64 was passed with a 53 to 47 percent margin. The ramifications will be closely watched throughout the country as federal law remains unchanged defining marijuana as an illegal drug.
Meanwhile, Washington state voters passed Initiative 502 which regulates and taxes sales of small amounts of marijuana for adults. Under the soon-to-be implemented Washington state law, adults in the state may now possess up to an ounce of marijuana, 16 ounces of marijuana products and 72 ounces of liquid infused marijuana products. The initiative passed with a 55 to 45 percent margin.
Because of the obvious conflict between the federal Controlled Substance Abuse Act and the new Washington and Colorado laws, we can expect more developments shortly as these newly authorized state-regulated marijuana markets begin to take shape. Although the Administration (e.g., the Attorney General, etc.) remained silent on the marijuana-legalization initiative throughout the election cycle, it has opposed legalization in the past.
A legal challenge to the Washington and Colorado laws is expected.
How does this affect employers? Neither initiative changes the ability of employers to maintain their current employment policies, nor does it prevent them from creating whatever policies they see fit. If employers do not currently allow off-site marijuana use by employees, they can continue to prohibit it. Neither requires employers to accommodate the use of marijuana by their employees. A recent Washington State Supreme Court decision, Roe v. Teletech, clearly stated that Washington State employers didn’t even have to accommodate workers with a doctor’s authorization to use marijuana under Washington’s Medical Use of Marijuana Act (MUMA).
Does this affect your current drug testing policy? No. The drug testing that your company and millions of employers around the world have been doing for decades was never based on the assumption that the user was doing something illegal under a criminal law – instead it has always been based on SAFETY and the efficiency of your workforce. No one who has failed a drug test has been reported to the police or charged criminally. Nothing changes after I-502 as far as workplace drug testing.
Here are some additional reasons why you should continue prohibiting the use of marijuana and continue drug testing for marijuana (THC):
1. If you are subject to the federal drug testing requirements – nothing has changed. The Dept. of Transportation, Department of Defense, Department of Energy drug testing programs still require that you prohibit the use of marijuana and continue to test for marijuana.
2. If you have or want to be eligible to receive federal contracts or grants, the Drug-Free Workplace Act of 1988 still applies to you – and this includes most state and local government agencies, school districts, etc. This Act requires that your written policy must prohibit ALL illicit drug use as defined by the federal Controlled Substance Act. There is no exception for “medical marijuana” or any other marijuana use. The Drug-Free Schools and Communities Act of 1989, declares that colleges or schools that allow illegal drugs on campus face the possibility of losing federal funding. Many different states have similar laws which will apply to you if you want to work or do business in those states.
3. Smoking pot doubles the risk of serious crashes. “Cannabis consumption – Motor Vehicle Collision Risk”
4. Because you are concerned about liability and risk management, you are probably aware of various courts and Supreme Court decisions that say an “employer can be held liable in such cases if it failed a duty to prevent foreseeable injury”. So, since everyone knows that marijuana use can severely impair, if you allow these people to work at your company or on your job sites, expect to be held responsible for injuries, accidents, and deaths that they cause – basically it’s the same logic as to why you don’t let someone work under the influence of alcohol, even though alcohol is a legal drug.
5. We have placed a number of published studies and research documents about “Why drug legalization is a bad idea for your workplace” on our website.
Drug Free Business will soon schedule a free online webinar “Don’t Let Your Business Go Up in Smoke” with a presentation by a leading labor attorney to help you review your current policies.