103 E. Holly, Suite 512 Bellingham, WA 98225
103 E. Holly, Suite 512 Bellingham, WA 98225
Posted on December 3, 2012 by Emily Beschen

Employee Drug Testing After I-502

On December 6, 2012 recreational marijuana will be legal in Washington State for those 21 years and older. All criminal penalties for possession of one ounce of marijuana or less will be eliminated.

Despite this change in the State law, employers throughout the state will continue to drug test employees. The new marijuana law does not include any protections from workplace drug policies.  Employers can discriminate against applicants and employees who use marijuana just as they could before I-502 went into effect.

Can you get fired for recreational marijuana use?

The unknown is how employers will tolerate out-of-work recreational marijuana use.  The foreseeable problem is that most workplace drug tests do not differentiate between past marijuana use and recent marijuana use. They will not be able to tell if an employer smoked last weekend or during their 15 minute work break. So, employers will likely favor continuing to use bright line rules – any detectable amount of marijuana in an employee’s system is cause for termination.

How do I know if my employer tolerates marijuana use?

The majority of employers across the United States are not required to drug test and many state and local governments have statutes that limit or prohibit drug testing in the workplace, unless required by State or Federal regulations for certain jobs. Certain Federally regulated employers will continue to follow Federal law.  Examples include truck drivers, train operators, aviation, shipping, and seaman.

  • City of Seattle, reminds employees that since they receive federal funding, and marijuana remains illegal under the federal law, they will still consider it as a banned substance and maintain a drug-free workplace.
  • Boeing and the Puget Sound Naval Shipyard both reiterated their zero-tolerance policies last week, citing the unchanged federal ban on marijuana and drug-free workplace requirements. “Unless or until there is further specific guidance issued at the federal level allowing for marijuana use in some (or any) situations, as federal employees we remain accountable to comply with federal law,” the shipyard said in a statement.
  • Sue Rahr, head of the Washington Criminal Justice Training Commission, said anyone who is thinking about becoming an officer should think twice about marijuana use. Applicants for law enforcement are commonly asked if they’ve used marijuana in the past three years, or more than 10 times in the past 25 years. An answer yes, is likely to cause their application to be thrown out.

Most private employers have the right to test for marijuana. Employers who do drug test will have a drug-testing policy that you should familiarize yourself with.

How long can marijuana use be detected in my system?

How long marijuana can be detected in a person’s system depends on a number of factors including the kind of test given, the individuals genetic makeup and metabolism, digestive and excretory systems, and other factors. The basic drug test types and their approximate detection times are shown in the below table:

Urine Blood Hair Saliva
Marijuana – Single   Use 1-7+ days (some research says longer) 12-24 hrs Doubtful Not validated(0 -24 hours?)
Marijuana – Regular   Use 7-100 days 2-7 days Months

(See California NORML, “Interpreting Drug Test Results,” August 2012 (available at http://www.canorml.org/healthfacts/drugtestguide/drugtestdetection.html)).

Urine tests are currently the most popular among employers. They detect marijuana for days or weeks after use. Blood tests, used far less frequently by employers, are a better detector of recent use and can measure the active presence of THC in the system. Hair tests measure residues that remain in the hair for months after use. These residues are absorbed internally and do not appear in the hair until 7-10 days after first use. Hair tests are more likely to detect regular than occasional marijuana use. Saliva testing is a newer, less proven technology. The sensitivity of saliva tests is not well established in the case of marijuana.  An international study of various onsite saliva tests concluded that no device was reliable enough to be recommended for roadside screening of drivers (See Rosita-2: Executive Summary, 2003-2006; available at  http://www.rosita.org/execsumm.htm)

So before you light up in celebration of December 6th, it would be wise to consult your employer’s policies on drug testing and recreational drug use.

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Emily Beschen
ABOUT THE AUTHOR

Emily Beschen

Emily C. Beschen is an Attorney at Law Offices of Robert D. Butler, PLLC. She is licensed in both Washington State and United States Federal District Court (Western District of Washington). Her primary focus is criminal defense and she has experience representing clients accused of felonies and misdemeanors. In addition to criminal defense Emily has taken on many cases involving defense of professional licensing.

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