Now That Personal Use of Marijuana Is Legal in Washington, Can an Employer Still Test for Use?

Question: I work as a clerk in the warehouse of a "big box" retailer in south Seattle. My employer conducts random drug tests of all warehouse workers, and the drugs tested for in the past have included marijuana. Now that recreational use of marijuana is legal in Washington, can my employer still test for it? (I would never smoke on the job, but I know that THC stays in the system for many hours after smoking.)

Answer: In a word, yes. Read on to learn about the current state of the law—and how it could change in the future.

Employer Drug Testing in Washington

As in most states, employers in Washington have great latitude in testing employees for drug use. This latitude has been reinforced by recent court decisions. In a 2011 decision, for example, the Washington Supreme Court affirmed an employer's right to terminate a call-center employee for use of medical marijuana, despite the fact that the employee had a valid medical marijuana card.

Improper Testing and Medical Information Confidentiality Laws

Although employers are generally allowed to drug test employees, even for legal drug use, there are limitations on the information an employer may demand from an employee, and there are protections for employees against improper testing and use of information gathered. If an employer violates the law by ordering a drug test, the results typically cannot be used as the reason for firing an employee.

Medical information confidentiality laws also limit employer access to employee confidential medical information. And, employers may not base employment decisions on an employee's disability.

Drug Testing by Private Employers

As a general matter, private employers may prohibit a wide variety of otherwise legal activity by workers on the job. For example, employers often prohibit employees from telling of raunchy jokes at work. Most employers also may legally prohibit alcohol or drug use or possession on the job and impairment by drugs or alcohol while at work.

As noted above, it's legal for employers choose to test employees for drug use. The Washington recreational pot law does not change the law in that state on the legality per se of employer drug testing. In 2012, just after recreational use of marijuana became legal in Washington, a spokesperson for Boeing, one of the state's major employers, said that it tests before hire, after an accident, or where drug use is suspected.

However, employees have frequently challenged employer drug testing policies in court, and the Washington law may give employees new grounds to do so. Employers who aggressively police legal, private, off-the-job activity by employees are inviting lawsuits. Some unions may also push back against employer efforts to regulate members' recreational activities. And, in fact, several years after legalization, there are signs that some employers are revising their policies on pre-employment marijuana screenings. Stay tuned for further developments in Washington drug testing laws.

Federal Employers and Employers Receiving Federal Funds

Marijuana use remains illegal under federal law. Thus, any federal employer or private employer that receives federal monies may have to conduct testing under federal guidelines. In addition, transportation industry employers and other companies engaged in businesses that particularly involve public safety will have even greater latitude to conduct drug tests than other employers.

Practical Considerations for Employers

Although the Washington recreational marijuana law does not directly alter the law in the state on employer drug testing, employers may be well advised to review drug testing policies in light of changes in the cannabis law. At a minimum, policies that call for termination or other discipline for an employee's use of "illegal" drugs might need to be revised, given that it is no longer unlawful for adults to use marijuana in Washington.

Check Company Policies and Talk to a Lawyer

Carefully review your employer's human resource policies regarding drug use and testing. And, if you have questions or believe that your employer's policies may violate the law, contact an experienced employment lawyer in your area.