With the legalization of Marijuana in Washington State, questions have arisen regarding how employers should treat positive drug screens. The concern is that a worker may test positive for marijuana, but may have used it over a weekend instead of during work.

The Federal Government still does not recognize marijuana as a legal drug, which means if the general contractor or subcontractor is working under a government contract, the substance is banned even if used during non-work hours.

Even in non-governmental contracts, employers who mandate drug tests and terminate employee on the basis of a positive result are not considered in violation of the state’s laws regarding marijuana. Currently only three states, Arizona, Delaware, and Minnesota, prohibit employers from terminating an employee for medical marijuana use.

Recent court cases have shown that even if an employee, fired for a positive drug test, cites the Americans with Disabilities Act (which prohibits an employer for terminating an employee based on a documented medical condition), as a reason for the marijuana use, the courts will support the employer’s termination. Federal law still considers marijuana an illicit drug with no current accepted medical use.

The best defense for employers is to train the staff on the organization’s drug and alcohol policies. If marijuana is banned, employees should refrain from using this substance, even recreationally during non-work hours. Unfortunately, in the workers’ compensation system in Washington, the use of marijuana would not preclude an industrial injury claim from being filed, and potentially accepted, even with a positive drug screen.

While Washington State has legalized recreational marijuana use, workers need to understand that this is their livelihoods, their careers are at stake, and there needs to be a high level of cooperation to make sure safety on the jobsite is everyone’s responsibility.

Greg Kabacy, MBA, CDMS Aspire Consulting LLC