The passage of Initiative 502 in Washington means marijuana becomes legal at midnight, December 6th. But it doesn’t provide any anti-discrimination protection for people who partake in this legal activity.
The Seattle Times reports that the city of Seattle, in addition to many other employers, is reminding its employees that passage of I-502 does not change their workplace drug testing policy. Federal law still considers marijuana illegal, they explain, and they receive federal contracts, so they must maintain a “drug-free workplace”. Except, of course, for the caffeine in the break room, the acetaminophen and antihistamines in the receptionist’s desk, the Prozac or Adderall the line workers may be prescribed, the beer or the martini the boss has with lunch, and the nicotine being smoked by addicts on company time on company property. Those drugs are legal under both state and federal law.
However, what most employers don’t realize is there is nothing about the 1988 Drug Free Workplace Act (DFWA) that requires most of them to “drug test” by inspecting the urine or saliva or hair of their employees to maintain the façade of a “drug-free workplace”.
The Department of Labor maintains a FAQ page for organizations to help advise them on maintaining a “drug-free workplace”. The steps required are:
Publish and give a policy statement to all covered employees informing them that the unlawful manufacture, distribution, dispensation, possession or use of a controlled substance is prohibited in the covered workplace and specifying the actions that will be taken against employees who violate the policy.
Establish a drug-free awareness program to make employees aware of a) the dangers of drug abuse in the workplace; b) the policy of maintaining a drug-free workplace; c) any available drug counseling, rehabilitation, and employee assistance programs; and d) the penalties that may be imposed upon employees for drug abuse violations.
Notify employees that as a condition of employment on a Federal contract or grant, the employee must a) abide by the terms of the policy statement; and b) notify the employer, within five calendar days, if he or she is convicted of a criminal drug violation in the workplace.
Notify the contracting or granting agency within 10 days after receiving notice that a covered employee has been convicted of a criminal drug violation in the workplace.
Impose a penalty on—or require satisfactory participation in a drug abuse assistance or rehabilitation program by—any employee who is convicted of a reportable workplace drug conviction.
Make an ongoing, good faith effort to maintain a drug-free workplace by meeting the requirements of the Act.
Publish a policy statement, educate on the dangers of drugs, punish drug violations in the workplace, require employee rehab… but not a word about “require employees to pee in a cup”.
There are certain occupations covered by federal law that do require adherence to “drug testing”. They include:
DOT – Department of Transportation
FAA – Airline Industry
FTA – Transit
RSPA – Pipeline
FRA – Railroad
USCG – Coast Guard/Merchant Marine
FMCSA – Federal Motor Carriers with:
• A vehicle with a gross weight of 26,001 pounds or more
• A vehicle which is designed to carry 16 or more passengers including the driver
• A vehicle of any size and weight that is used to transport hazardous materials
Also, contractors for the Department of Defense are required to implement random drug testing. An employer who wants to be certain their requirements under federal law with respect to “drug testing” can visit the “Am I Covered” page at the Department of Transportation.
Under Washington State Law, employers are under no requirement to “drug test” their employees. Previously, the state had offered a 5% discount on mandatory state workers compensation insurance premiums for workplaces that performed “drug testing”, but the current guide to state workers compensation makes no mention of it.
As marijuana use on December 6th will be as legal as alcohol use, Washington State employers would be wise to revise their drug testing policies to exclude marijuana use. Dan Swedlow, senior staff attorney for Teamsters Local 117 told Seattle Times, “We think 502 changes everything. We’re clearly headed for a showdown with some employers. Once it’s legal, there’s just not a legitimate interest for an employer to say, ‘You tested positive, you’re fired.'”
However, the defenders of the status quo disagree. James M. Shore, an employment lawyer told Seattle Times he recommends companies change their policies to prohibit drugs illegal under state or federal law — “with an exclamation point on federal law,” he said — and maintain a “zero tolerance” policy for any detectable amount.
This puts employers in the position of enforcing the federal ban against marijuana, something 56% of the people of the state just rejected. Even the US Department of Labor admits “drug testing does not test for impairment or whether a person’s behavior is, or was, impacted by drugs.” Furthermore, “most private employers have a fair amount of latitude in implementing drug testing as they see fit for their organization” and “private employers are not required to follow these… Mandatory Guidelines for Federal Workplace Drug Testing.”
No matter what employers do, the marketplace will force their hand. Employers will have an increasingly difficult time finding qualified employees as legal use of marijuana leads to more failed pre-employment screenings. Companies that respect their employees’ legal marijuana use will have a leg up on the best talent and labor. As months of legal marijuana progress and there is no appreciable change in workplace safety and productivity*, the remaining drug testers will have only “Uncle Sam said so!” as a defense for their retrograde discrimination policy against marijuana consumers. A state eager for tax revenues will be forced to confront employers’ policies that limit their potential income by forcing Washingtonians to choose keeping jobs over legal marijuana purchases.
I have written for seven years now that the legalization of marijuana under any circumstances in just one state would be like toppling the first domino in a line. As someone who is only writing about marijuana for seven years because drug testing derailed my promising career, I couldn’t be happier to watch that pee test domino fall.
* Note: They will try to tell you “drug abuse creates significant safety and health hazards and can result in decreased productivity” and in the case of marijuana, it is bunk. Workplaces are the safest they have ever been in nearly every medical marijuana state and marijuana is only a health hazard is a 300lb bale of it falls on you from the sky. Almost every study claiming these harms lumps marijuana in with all other illegal drugs. The productivity studies are particularly odious, as they measure the lifetime earnings of marijuana users compared to non-users, ignoring the fact that drug testing prevents marijuana users from achieving higher career status and marijuana use sometimes leads to incarceration!
Is drug testing required or authorized under these regulations?
The Act and these rules neither require nor authorize drug testing. The legislative history of the Drug-Free Workplace Act indicates that Congress did not intend to impose any additional requirements beyond those set forth in the Act. Specifically, the legislative history precludes the imposition of drug testing of employees as part of the implementation of the Act. At the same time, these rules in no way preclude employers from conducting drug testing programs in response to government requirements (e.g., Department of Transportation or Nuclear Regulatory Commission rules) or on their own independent legal authority.