Resources for Addressing Recreational Marijuana as Employers and Lodging Owners and Operators
The following information is excerpted from articles written in 2013 for WLA members by Attorney Samantha Noonan and by Williams Kastner Attorney Tami Becker Gómez after the passage of Initiative 502. It should not be considered legal advice, but is instead offered to provide information for the Washington hospitality industry related to Initiative 502.
Federal v. State law
Many employers may be confused by the dueling laws now at play in Washington state. Although, following the passage of Initiative 502, marijuana use (with restrictions) is now legal in Washington state, marijuana use remains illegal under federal law. This discrepancy between federal and state law is an advantage for employers. Because marijuana use and possession is still illegal under federal law, employers can continue to prohibit their employees from using marijuana and can continue to test their employees and/or applicants for marijuana.
In order to take advantage of the protections still in place under the federal law, employers should ensure that their policies and handbooks prohibit the use of illegal substances under all applicable federal, state and local laws. Likewise, employers should revisit their policies on intoxication at work. Although most employers have some policy regarding employees being under the influence at work, these policies may need to be modified to specify marijuana in particular and should note that no detectable level will be tolerated (as marijuana’s active ingredient THC may stay in a person’s system for multiple days after use).
Some employers may be subject to federal drug-testing regulations because of receipt of federal grant monies or because the employer’s business is regulated by the federal government. These employers must continue to conduct drug tests as required, follow applicable procedures should a positive test occur, and maintain a drug-free workplace.
Medical Marijuana v. Recreational Marijuana Use
As outlined above, Washington employers are still free to prohibit the use of recreational marijuana following the passage of Initiative 502. But what about medicinal marijuana use? Luckily for Washington employers, this issue has been decided by the Washington Supreme Court. In the case of Roe v. TeleTech Customer Care Management, 171 Wn.2d 736 (2011), the Court dismissed a plaintiff’s wrongful discharge claim (the plaintiff was discharged because of a positive drug test), finding that Washington’s Medical Use of Marijuana Act did not require her former employer to disregard its zero tolerance drug policy. A wise employer will take a second look at its policies and ensure that if such policies allow for the use of prescription drugs at work, those policies state that prescription drugs be legally prescribed under both state and federal law. Employers may even choose to state that they prohibit the use of marijuana even if prescribed under the provisions of the Medical Use of Marijuana Act.
Although Washington employers are relatively well protected in their decisions regarding allowing or disallowing their employees to engage in marijuana use, such protections do not prevent litigation on the issue. As Initiative 502 is a recent change in the law, employers can expect to see employees challenge marijuana-related employment decisions. As an employer, ensuring that comprehensive policies are in place is a solid first step in protecting yourself.
Washington’s Smoking in Public Places Law
Washington’s 1985 Clean Indoor Air Act banned smoking in public places, except in certain designated smoking areas. In November 2005, Washington voters passed Initiative 901 (codified in 2006 and set forth as RCW 70.160 et seq.) to prohibit smoking in all places of employment and in all public places. The definition of “public place” includes bars, restaurants, recreational facilities and non-tribal casinos, and also includes private residences used to provide child care, foster case, adult care, or similar social services, and at least 75 percent of guestrooms within a hotel.
Section 70.160.075 of the Smoking in Public Places law prohibits smoking within 25 feet of entrances, exits, windows that open, and ventilation intakes that serve enclosed areas where smoking is prohibited. Under the language of the section, “[o]wners, operators, managers, employers or other persons who own or control a public place or place of employment may seek to rebut the presumption that 25 feet is a reasonable minimum distance by making application to the director of the local health department or district in which the public place or place of employment is located.” RCW 70.160.075.
While Washington is one of the first states to legalize the recreational use of marijuana, the use of or display of marijuana within public view is still illegal. Therefore, the smoking restrictions set forth under the Washington Smoking in Public Places law are not likely to apply to recreational marijuana use or display. Similarly, under the Medical Cannabis law, use or display of medical marijuana in the general public is prohibited.
Although there is no case law addressing such a scenario, it may be assumed that hotels or motels may effectively ban any public use or display of recreational marijuana in or around the property or any nearby public areas.
Hotel Policies on Smoking
There is no current protocol within the hospitality industry as to smoking medical or recreational marijuana inside hotels. As such, property owners and operators of hotels with a property-wide smoking ban might consider extending the ban to include marijuana (whether medical or recreational) and confine all smoking to designated exterior smoking areas only.
For properties with designated smoking rooms, owner/operators would be well served to have a written policy that addresses the use of marijuana in designated smoking rooms. Factors to consider in creating such a policy include whether the hotel’s reputation may be tarnished by allowing marijuana to be smoked on site, what the hotel’s duty is to other guests who may be exposed to second hand smoke, and whether permitting the use of medical marijuana in a designated smoking room constitutes a “reasonable accommodation” under the Americans with Disabilities Act.
For the original articles on Washington’s Marijuana Laws:
In the Weeds: An Employer’s Perspective on Managing Employees Who Smoke Marijuana and Requiring Drug Tests by Tami Becker Gómez
Legal High: A Primer on I-502 and Washington’s Recreational Marijuana Law by Samantha Noonan.
None of the above should be considered legal advice, but is instead offered to provide information and address rising issues in the Washington hospitality industry related to Initiative 502. Please contact an attorney for specific legal advice.