Clearing the Legal Haze of Marijuana in the Lodging Industry: Answers to Frequently Asked Questions
Attorney Chris Hilgenfeld, a shareholder at WLA allied member Davis Grimm Payne & Marra provides answers to frequently asked questions on what Washington’s marijuana laws mean for lodging owners and operators.
In November 2012, Washington voters passed Initiative 502, which decriminalized marijuana in certain instances and created a system for distribution regulated by the Washington State Liquor Control Board. This new law, along with Washington’s Medical Use of Marijuana Act (i.e., medical marijuana), has created questions and concerns for all employers. The marijuana laws in Washington have also led to many questions for lodging owners and operators, as the lodging industry must address guest-related concerns regarding marijuana usage. I have attempted to address the questions that I have most commonly heard.
I was told that marijuana is now legal in Washington, is that right?
The new Washington law (Initiative 502) has decriminalized under state law possession of marijuana – in small amounts – for individuals 21 years of age and older. Possession of marijuana is still illegal under federal law. The selling or distribution of marijuana without a state license is illegal under both state and federal law.
Can I drug test my employees for marijuana?
Yes. The new marijuana laws do not limit an employer’s right to drug test in the workplace. Employers must still ensure they are drug testing correctly. In doing so, all employers should review their handbooks and drug-testing policies. Although an employer is permitted to drug test, the employer is expected to administer and adhere to its own policies. Employer policies should prohibit the use of illegal substances under all applicable federal, state and local laws, not simply state that the use of illegal substances is prohibited.
Employer policies should also specifically define what ‘under the influence’ means. In most cases, drug tests are administered using a urine sample, which detects the release of THC (the active ingredient in marijuana) in the body. Because THC is stored in the person’s fat cells, it can be detected in a person’s body for days or even weeks after use. As a result, an employer should identify what test results constitute being under the influence.
The employer must also be aware that certain positions may require different standards. For example, a CDL driver position must adhere to Department of Transportation drug-testing requirements.
What if my employee has a medical marijuana card?
Employers may still establish a drug-free work place and are not required to accommodate the use of medical marijuana. An employer should review its policy regarding the use of prescription drugs. The policy should limit when prescription drug use is permissible. For instance, the policy may state that prescription drug use is permitted, so long as the drug is used as prescribed and legal under federal, state and local laws.
My hotel is unionized. Can I use the new marijuana law to change policies or procedures?
The new marijuana laws do not alter your labor agreements. The new laws also do not change your bargaining obligations. If you do need to revise your drug-testing policies or procedures, you must do so in accordance with labor laws. Your exact bargaining obligations will depend on your specific circumstances.
Can I prohibit guests from smoking marijuana in their rooms?
Yes. Hotels are not required to permit marijuana usage in their establishment, even if the hotels permit smoking in designated areas or guest rooms. The medical marijuana law also does not require hotels to permit on-site usage of marijuana. Hotels should expressly prohibit marijuana usage if that is their goal.
May I allow guests to smoke marijuana at my lodging establishment?
If the lodging establishment is on state property, the decision to allow marijuana usage in a smoking room is up to the discretion of the lodging owner and operator under state law. If the hotel is on federal property, the possession of marijuana is illegal and the owner and operator are placing their establishment at risk. Furthermore, if the employer receives federal funding or grants, federal drug-free workplace requirements may also apply. The interplay between state and federal laws is not entirely known. Because of the unknown, lodging establishments do place themselves at some risk by permitting marijuana usage on site.
A pot store plans to open up next to our establishment. Is there anything that I can do?
Possibly. Washington’s new marijuana laws still permit the cities and counties to regulate zoning. The pot stores are subject to those local zoning laws and requirements. Several cities and counties are considering whether to ban marijuana businesses, or at least create strict zoning requirements. By working with your local government officials and zoning boards, you can remain proactive in your response.
Marijuana issues in Washington are growing increasingly complex and subject to sudden change. All employers must remain vigilant and work with their human resources specialist and/or their attorneys to ensure they are ahead of the haze.
None of the above should be considered legal advice, but is instead offered to provide information and address issues relevant to the Washington hospitality industry in connection to the legalization of recreational marijuana. Please contact an attorney for specific legal advice.
ADDITIONAL RESOURCES
Recreational Marijuana Use Can Still Get You Fired by Clarence M. Belnavis, attorney with the allied member law firm of Fisher & Phillips (July 2014)
In the Weeds: An Employer’s Perspective on Managing Employees Who Smoke Marijuana and Requiring Drug Tests by Tami Becker Gómez, attorney with the allied member law office of Williams Kastner (May 2013)
Legal High: A Primer on I-502 and Washington’s Recreational Marijuana Law by Samantha (Sam) Noonan, attorney at law (May 2013)