A few days after Washington voters said 'yes' to legalized marijuana, the Seattle Police Department drew nationwide attention -- and a few grins -- with the release of "Marijwhatnow? A Guide to Legal Marijuana Use In Seattle."
The handy guide answered questions for curious and potential pot smokers, but it didn't attempt to address any of the questions facing employers, such as: How does Washington's new law change a company's human resources policy? And what happens if an employee shows up at work high?
Greg Hendershott, a partner at Davis Wright Tremaine, provided some of those answers Wednesday during AWB's seminar, "Decriminalization of Marijuana and the Workplace."
(A webinar on the same topic will be held Jan. 15. Registration is available online.)
The short answer, Hendershott said, is that little has changed in the workplace as a result of the November vote.
Marijuana still is illegal under federal law. Employers can still test workers for drugs, including marijuana. They can still enforce drug-free workplace policies. And there is no duty for employers to accommodate medical marijuana use under Washington or Oregon law, or the federal Americans with Disabilities Act.
"Fundamentally, if you want to say nothing has changed, that's a pretty accurate statement," Hendershott said.
That doesn't mean, however, that employers should sit back and do nothing. At a minimum, employers should review their workplace policies and, if necessary, consider clarifying the definition of "illegal drugs."
Employers with workers represented by labor unions should remember that they may not be able to unilaterally their change policy, and that unions may request changes, too.
Once they have updated their policy, employers should re-circulate the policy to employees and remind workers that the policy still applies to marijuana use, possession and being under any influence.
A potential complication for employers is the difference between a postitive drug test and an impaired worker. Marijuana can remain in someone's system for two or three weeks after use, meaning someone who used the drug at home on a Friday night can test positive several days later, long after the influence has worn off.
As a consequence, some employers will need to decide how aggressive they want to be about enforcing drug-free workplace policies.
The question could be decided by safety concerns, Hendershott said. If safety is an issue, there is no question. Another consideration is the type of workforce a company wants to attract.
"If you're running a gaming design company, you may not want to be super-aggressive," he said, drawing some laughter.
Ultimately, Hendershott sought to reassure his audience of mostly HR professionals that passage of Initiative 502 won't lead to major changes.
Despite all the attention around the issue, Hendershott said the language in the initiative is actually quite restrictive.
"Based on what I've heard, I think the perception is that it's much more of a free-for-all than it really is," he said.
