Employers are well advised to maintain some form of drug policy prohibiting employees from reporting to work/working under the influence of controlled substances and alcohol. Conditions on a private employer’s ability to perform drug testing depend on the state law applicable to its employees. Many states allow private employers to conduct random and reasonable suspicion drug testing of employees and most states permit employers to make an offer of employment conditioned on passing a drug test. The Washington Supreme Court recently addressed an employee’s challenge to her employer’s right to terminate her based on her use of medical marijuana, finding that the employee’s use of medical marijuana was not protected by the Washington Medical Use of Marijuana Act.

The employee was offered a position with the company contingent on the results of reference and background checks and a drug screening. She was provided the company’s drug policy requiring all employees to have a negative drug test result and providing noncompliance would result in ineligibility for employment. Prior to taking her drug test, the employee informed the company about her use of medical marijuana and offered to provide a copy of her authorization. After learning the employee had a positive drug test result, her supervisor confirmed that the company’s drug policy did not make any exception to medical marijuana and her employment was terminated under the policy.

The employee brought a wrongful termination claim, claiming that Washington’s Medical Use of Marijuana Act (MUMA) prohibited her termination and that her employment was terminated in violation of public policy. The Court recognized that Washington’s MUMA provides a defense to criminal action based on medical marijuana use but specifically does not require an employer to accommodate on-site medical marijuana use in any place of employment. The Court also found the statute does not require an employer to accommodate an employee’s medical marijuana use off-site. As a result, the Court affirmed the trial court’s dismissal of the employee’s wrongful termination claims.

A good drug testing policy clearly states what employee conduct is prohibited as well as the actions taken if that conduct occurs. In our updates, we have previously addressed the variety of factors to consider when implementing a drug testing policy (See, Employment Law Update, December 27, 2010). The Washington Supreme Court’s decision was based on Washington’s statute permitting medical marijuana use, which did not limit an employer’s ability to take employment action for a positive drug test as a result of medical marijuana use. However, the case illustrates the potential for state law to restrict an employer’s actions and provide employee protections, which could include possible protection from termination based on use of medical marijuana away from the workplace.