Alaska voted on Nov. 4, 2014, to decriminalize possession, use, display, purchase, and transport of marijuana. Alaska has now joined Colorado, Washington, Oregon, and Washington, D.C. in legalizing recreational marijuana use. For employers, the main thing to remember is 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.” Ballot Measure 2, § 17.38.120(a) (2014).

Nevertheless, employers should revisit their personnel policies and drug testing programs, revise them if needed, and communicate with their employees about the impact of this initiative on their workplace. For example, drug and alcohol policies may continue to prohibit marijuana use by employees, and employers may continue testing employees for marijuana. Whether it results from on-duty or off-duty use, a positive test for marijuana can support disciplinary action (including termination of employment) pursuant to well-written policies. Furthermore, as marijuana remains illegal under federal law, federal contractors and grantees need to continue to treat marijuana as an illegal drug under their Drug Free Workplace policies.

Employers who drug test should continue to maintain a drug testing program that complies with Alaska’s 1997 Safe Harbor Statute. This statute allows an employer to limit its potential liability for adverse employment actions towards employees who fail their alcohol or drug test. AS §§ 23.10.600-.699.

Before the Nov. 4 initiative, Alaska’s Medical Uses of Marijuana for Persons Suffering from Debilitating Medical Conditions Act, AS 17.37.010¬-.080 (“Medical Marijuana Act”) already decriminalized medical use. The Medical Marijuana Act ultimately had little impact on many employer drug testing policies because, like the Nov. 4 initiative, the Medical Marijuana Act stated that it was not intended to require accommodation by employers.

Of course, unresolved issues remain. New legal arguments based upon discrimination, privacy, and public policy theories continue to develop as employees and prospective employees look for ways to challenge terminations and hiring decisions. To date, employees have generally been unsuccessful, but theories continue to evolve. See e.g., Roe v. TeleTech Customer Care Mgmt. (Colorado) LLC, 257 P.3d 586 (Wash. 2011); Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010); Ross v. RagingWire Telecommunications, Inc., 174 P.3d 200 (Ca. 2008).

For example, in 2012, Colorado decriminalized marijuana. Colorado also had a pre-existing law that prohibits employers from firing employees for engaging in lawful conduct while off-duty. (In Alaska, common law privacy concepts and related public policies can establish grounds for prohibiting employment actions based upon off-duty conduct.) Because detection time periods for marijuana use vary based on several factors, a positive test may often implicate or disclose off-duty conduct. So far, Colorado courts have rejected attempts to avoid disciplinary action based upon the “lawful” off-duty conduct statute, holding that the illegality of marijuana under federal law precludes reliance on the off-duty statute. Coats v. Dish Network, 303 P.3d 147 (Colo. Ct. App. 2013). Coats, however, has been appealed to the Colorado Supreme Court.

Employers and employees should keep in mind that federal law still treats marijuana as an illegal drug (e.g. controlled substance). Federal agencies have made it clear that they will continue to enforce federal law in highly regulated industries, regardless of the DOJ’s position regarding prosecution of medical marijuana users. See e.g., U.S. Department of Transportation, DOT 'Medical' Marijuana Notice(explaining the DOJ position “will have no bearing on the Department of Transportation’s regulated drug testing program”).