Marijuana legalization: Initiative 502 approved in Washington, but don't hurry to smoke pot

Employers might step up workplace drug testing

BREMERTON, Wash.-- Washingtonians signaled an end to marijuana prohibition this week but a rush to smoke a celebratory joint when pot officially becomes legal might be ill advised for many.

Anyone who works for the federal government still will be prohibited from using marijuana.

Any "at-will" employees, who can be fired without cause, also might be putting themselves at risk by lighting up. For nonfederal union employees, the marijuana initiative also could mean more time at the bargaining table.

Initiative 502 was approved by popular vote on Tuesday. It legalizes possession of as much as an ounce of pot, but it "does not require employers to accommodate the use of the marijuana," said Michael Subit, an employment attorney who argued a medical marijuana case before the state Supreme Court.

Employers might step up workplace drug testing and more employees will fail drug tests as they probe the limits of the new state law.

Doug Honig, a state spokesman for the American Civil Liberties Union, said his organization would like employers to conduct tests based on suspected violations, rather than arbitrary testing.

"We hope that employers would focus on impaired behavior," he said, "and not simple consumption of a legal product."

Part of the issue is the way in which marijuana is digested in the body. Unlike alcohol, which "flushes through your system" relatively quickly, marijuana builds up in the body's fat cells, according to Troy Barber, a spokesman for Sensible Washington, which opposed the initiative. That means an employee might fail a drug test despite no longer being under the influence of pot.

Sensible Washington opposed the initiative because it allows police to order a blood test to see how much marijuana is in a driver's system. And while the initiative established a threshold -- five nanograms per milliliter of THC (pot's psychoactive ingredient) -- employers could conceivably fire a worker should any presence of pot show up on a drug test.

There's a good chance the initiative ends up in court. The Justice Department could ask a judge to throw out part or all of the law.

Whether the federal government fights the state law, it won't allow its employees to use marijuana.

Federal workers are forbidden from using pot and other drugs that are illegal under the federal Controlled Substances Act, according to Puget Sound Naval Shipyard and Intermediate Maintenance Facility spokeswoman Mary Anne Mascianica.

The act bars access to classified information for anyone who has "improper or illegal involvement with a controlled substance listed in the act," Mascianica said. "(Shipyard) employees must qualify for that access, so use of marijuana would prohibit employment at this command."

The same goes for active duty members of the military who are stationed in Washington, for largely the same reasons, according to Defense Department spokeswoman Eileen Lainez.

Washington companies that do business across state lines also might not change their drug policies, nor are federal contractors, like Boeing, likely to do so.

"As a federal contractor, Boeing's Drug Free Workplace policy is based on federal standards, which define marijuana as an illegal drug," said Cathy Rudolph, a spokeswoman for Boeing. "Therefore use of marijuana by Boeing employees is prohibited."

Even college students likely will not be able to openly use marijuana on campuses. According to an article written by Washington State University's Murrow News Service, colleges and universities can lose federal funding for allowing illegal drugs on campus, under the Drug-Free Schools and Communities Act of 1989.

Some states have "off-duty conduct laws" that protect employees from being punished for certain activities they engage in outside the workplace. But Washington is not one of them.

The exception might be union members, who can't be fired without "just cause," Seattle labor attorney David Black pointed out. Legalized marijuana likely will create issues that need to be worked out at the bargaining table, he said.

(Contact Josh Farley of The Kitsap Sun in Bremerton, Wash., at JFarley@kitsapsun.com)

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