Letter to Local Government Employees on Marijuana Use After I-502

What should a local government employer say, if anything, to its employees regarding the impact of Initiative 502, which legalized some recreational use of marijuana, on the workplace?

I wrote a blog post a few weeks ago that answered some of the employment-related questions that have arisen after the enactment of Initiative 502, and the main point of that blog was to clarify that the effect of the initiative in regard to workplace and personnel policies is really quite minimal. For example, for those jurisdictions covered by the Federal Drug-Free Workplace Act, which includes any jurisdiction that is a grantee of federal funds in any amount, there still must be a zero tolerance policy for use of illegal drugs.

Understandably though, many employees may be unclear now as to what I-502 allows and does not allow and how it may impact their conduct at work and while away from work. In order to respond to this uncertainty, a number of jurisdictions have provided a letter to their employees clarifying the relationship of marijuana possession and use to employment with the city, county, or special purpose district for which they work.

There is not one form letter that must be used or any magic or specific language that must be included in such a letter. However, the letter used by the City of Kent from the mayor to city employees is, in my opinion, a good example of such a letter; it is short and to the point but conveys the significant information. It is applicable to those  jurisdictions covered by the Federal Drug Free Workplace Act, which is a significant number of local governments in the state. Here is the text of the Kent letter:

Letter to Employees  On Marijuana Use and Public Employment After the Passage of I-502:

As you are aware, with the passage of Initiative 502, the possession of up to one ounce of marijuana became legal in the state of Washington starting December 6, 2012. With the passage of I-502, it is important to clarify for City staff the relationship of marijuana possession and use to employment here at the City. The city of Kent is committed to providing a safe working environment and our drug and alcohol policies have been developed to further that commitment.

The city of Kent receives a significant amount of federal grant funding which is conditioned upon the maintenance of a drug free workplace, and which requires zero tolerance in the use of illegal drugs. Moreover, the possession of marijuana remains a crime under federal law. As a result, it is important that employees understand that the possession or use of marijuana while on duty will not be tolerated, and employees who do possess or use marijuana while on duty will be subject to discipline. Further, as with current policy, employees may not report to work under the influence of marijuana, and if they choose to do so, they will be subject to discipline.

For those employees who must maintain a Commercial Driver’s License, it should be understood that a positive test for marijuana will remain a basis for revocation of the CDL. It is clear that pursuant to the Department of Transportation’s position relating to medical marijuana, Washington’s legalization of marijuana will not relieve a CDL holder of the consequences of a test that is positive for marijuana use. Also, it is reported that marijuana may stay in a user’s system for a period of time after use. Thus, a person who tests positive may be subject to CDL revocation and job loss even if technically not under the influence of marijuana when tested.

As this is a new state law, that conflicts with federal law, the Human Resources Department will be reviewing the City’s policies to ensure that the City honors the intent of I-502, while remaining a drug free and safe workplace. Staff will be notified of any policy amendments as they are made. We will continue to communicate any changes to city policy as we better understand the intent of the law in relation to the federal law. If you have questions please let me know and I will work with the Legal and Human Resources Departments to address your inquiry.

About Pat Mason

Pat is recognized throughout Washington State as a highly trusted resource on municipal law. He supervises MRSC’s legal consultant staff and regularly counsels local governments on public records, open public meetings, and just about any other municipal issue that comes up.
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One Response to Letter to Local Government Employees on Marijuana Use After I-502

  1. The phrase “zero tolerance policy for use of illegal drugs” implies that 41 USC 701 requires “zero tolerance” for off-work marijuana use, but it does not. The phrase “zero tolerance” is not in the law, and is perhaps not the best word choice to describe the drug-free workplace requirements discussed.

    http://www.dol.gov/elaws/asp/drugfree/require.htm

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