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New Pot Laws? No Worries

Following voter approval of recreational marijuana use in Washington state and Colorado, one employment lawyer nevertheless recommends making any necessary revisions to company drug policies so no gray areas exist between state and federal law.

December 14, 2012
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Related Topics: Substance Abuse, Drug & Alcohol Testing, Miscellaneous Legal Issues, Legal
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Nancy Delogu's advice to human resources professionals attempting to ascertain the effect on the workplace of new marijuana laws: "Don't panic."

Delogu is a shareholder in the Washington, D.C., office of law firm Littler Mendelson. She says employers probably won't have to change a thing. But just to be sure, HR should check with top management. Once the policy is clear, they should make sure all employees are familiar with it.

Jim Shore, a partner in the Seattle law firm of Stoel Rives, recommends making any necessary revisions to company drug policies so no gray areas exist between state and federal law.

"What I'm telling my clients is to remind employees that regardless of the new Washington state law, the company's drug-testing policy covers federal law, and marijuana is still a prohibited drug under the drug-testing policy," Shore says. "If it's in their system, they face discipline under the policy, or, if it's a zero-tolerance policy, termination."

Shore says to make sure there are no loopholes, referring to written policies that say "illegal" drugs, rather than specifying "illegal under local, state or federal law." He also says that prohibiting the condition of being "under the influence" allows too much wiggle room. It's best to state flatly that "any detectable amount" found in a drug test will not be tolerated.

In addition to clarifying drug policies stated in the employee handbook, Shore says job candidates should be informed, even before they fill out an application, of the company's drug policy. As an example, he cites warehouse retailer Costco Wholesale Corp., which prominently posts its written drug policy at each store's customer service counter. Online applicants must agree to possible testing "conducted in accordance with applicable federal and state law."

Susan G. Hauser is a writer based in Portland, Oregon. Comment below or email editors@workforce.com.

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