On November 4, 2014, Alaska voters approved a ballot initiative legalizing the recreational use of marijuana for adults aged 21 and over. With passage of the measure, Alaska joined Washington, Oregon, Colorado, and the District of Columbia as jurisdictions where recreational marijuana use is permitted. Effective February 24, 2015, adult Alaskans may possess up to one ounce of cannabis and may cultivate up to six marijuana plants for personal consumption. Commercial production and retail sales of cannabis will now be subject to licensing and taxation. Alaska’s Alcoholic Beverage Control Board (or a new entity, if the legislature chooses to create one) will have nine months to craft regulations and the state will begin accepting marijuana business licenses in February of 2016.
Since 1975, the right of privacy guaranteed in the Alaska Constitution has been interpreted to permit residents to possess small amounts of marijuana (less than four ounces) in the privacy of their homes. The new law expands that long-held right of privacy to create a marketplace for the sale of recreational marijuana. Alaska employers, however, may still maintain zero-tolerance policies with regard to marijuana, which remains illegal under federal law. Section 17.38.120(a) of Ballot Measure 2 states that, nothing in the recently-passed initiative “is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees.”
Leaving aside those states that have anti-discrimination provisions in their medical marijuana laws, courts have unanimously rejected plaintiffs’ attempts to convert laws legalizing medical or recreational marijuana into a basis to undermine employers’ right to discipline, discharge, or refuse to hire individuals who use marijuana. Although a 2013 Colorado Court of Appeals case rejecting a plaintiff’s attempt to avoid discipline for “lawful” off-duty use of medical marijuana has been appealed to the Colorado Supreme Court, lower courts in Colorado have reached the same conclusions as courts in Washington, Oregon, and California regarding an employer’s right to prohibit marijuana inasmuch as it remains illegal under federal law.
Nothing about the new law alters employers’ rights with regard to Alaska Statutes 23.10.600 – 23.10.699 which limit employer liability for damages arising from adverse employment actions taken in good faith when the employer has a drug and alcohol program or policy that complies with the statutory requirements. An employer seeking protection under the statute must, among other actions, adopt and publish drug and alcohol testing policies that
- identify the types of testing required,
- identify the circumstances under which employees will be tested,
- identify the consequences of failing a test,
- identify the testing methodologies to be used,
- identify the information to be provided to the tested employee at his or her request,
- require the use of a medical review officer,
- and protect confidential testing information, among other safeguards.
The new law also requires employers to compensate employees for time they spend in drug and alcohol testing, and all costs associated with such testing, including transportation costs, must be paid by the employer. If an employer has established and implemented a drug and alcohol testing program that complies with the statute, an individual’s claim for damages is barred unless the employer’s action was based on a false positive test result and the employer knew, or clearly should have known, that the result was in error and the employer ignored the true test result because of reckless or malicious disregard for the truth or the willful intent to deceive or be deceived.
Alaska employers should bear in mind that workplace zero-tolerance drug and alcohol policies remain permissible despite the state’s new law legalizing recreational marijuana. Employers’ drug testing policies should, nevertheless, be revised to clearly state that marijuana remains illegal under federal law and that marijuana remains prohibited under the employer’s policies. Finally, even after Alaska voters’ approval of a measure legalizing marijuana, employers retain the safe harbor defenses articulated in Alaska’s laws.