With more states passing medical marijuana legislation and some even taking measures to decriminalize marijuana use (Alaska, Oregon, Colorado, and Washington), employers are asking how they should consider marijuana use during the employment screening process. To date, most states have deferred to Federal law, which classifies marijuana as a Schedule 1 illegal drug. Recent legislation in Washington may cause employers to rethink this strategy.
A month after the District of Columbia approved recreational use of marijuana, the D.C. council passed a temporary emergency measure Bill 20-1015 a.k.a. “The Prohibition of Pre-Employment Marijuana Testing Act of 2014” in an effort to provide employers with guidelines for protecting the rights of recreational marijuana users. While Initiative 71, which legalizes recreational marijuana use, has not yet gone into effect, it is set to become law as early as the end of February (unless congress intervenes). Bill 20-2015 is an emergency measure put in place to prevent discrimination once Initiative 71 takes effect. The emergency measure restricts employers from drug testing job applicants until they are formally offered employment. Employers are still free to require a drug test in compliance with workplace policies and Federal law once a conditional offer has been made.
According to the bill’s creator, D.C. Council Member Vincent Orange, “The citizens of the District voted for Initiative 71, to legalize marijuana, and this bill will protect citizens who legally smoke marijuana but are then subsequently penalized for it through loss of employment opportunities. The bill aims to prevent the loss of a job opportunity for job seekers who have used marijuana prior to receiving a job offer but it does not remove an employer’s right to prohibit the use of drugs at work or at any time during employment.”
The Act is an emergency measure and is set to expire on March 18th, 2015. However, similar legislation has been proposed. The Prohibition of Pre-Employment Marijuana Testing Act of 2015 was introduced January 6th 2015 and is currently under review. If enacted, it would prohibit drug tests for marijuana as part of the employment application procedure unless otherwise required by law. Similarly to the Emergency Act of 2014, it will not require an employer to accommodate use, possession, or sale in the workplace or during employment. Will we see a rise in discrimination suits regarding marijuana? There have only been a few cases so far (ACLU Rhode Island). However, employers in impacted states would be wise to begin evaluating their hiring processes and determining proactive measures they can take to protect themselves from future liability. Washington has set a precedent and other marijuana-friendly states are likely to follow suit.