Can Employers Still Drug Test for Marijuana, Even After Legalization?

Can employers still terminate employees for testing positive for Marijuana? The quick answer is yes.  As states continue to legalize marijuana for medical and recreational use, employers need to know where they stand legally when testing employees and job candidates.

The Case of “Michael Swaw v. Safeway”

In the case, Washington State’s “Michael Swaw v. Safeway,” Michael Swaw, a factory worker for Safeway, tested positive for marijuana after a post-accident drug test was administered. As a result, his employment with the company was terminated. Mr. Swaw later sued Safeway for employment discrimination on the basis of disability. He claimed he was disciplined more severely, job termination, than other employees whose drug test results were positive for alcohol.

Safeway argued that the State of Washington law does not require employers to accommodate medical marijuana in drug-free workplaces. Safeway has a drug-free policy which prohibits “testing positive for a controlled substance on the job or on company premises.” As outlined in the company’s policy, controlled substances include “all chemical substances or drugs listed in any controlled substances acts or regulations applicable under federal, state or local laws.”

The court ruled in favor of Safeway since marijuana is still classified as a Schedule I controlled substance and is still illegal under federal law. As such, Safeway, and other employers, can still screen for marijuana even though the drug may be “legal” in certain states. It is important to note that not all employers drug test, but it is extremely important to test employees in “safety-sensitive” roles.

What Should Employers Do?

As the legal landscape surrounding marijuana continues to change, employers need to establish a drug-free workplace policy. Understanding and following the local, state and Federal laws surrounding marijuana, and drug testing in general, is very important. For example, some states do not allow termination of employment for the first offense when tested positive for any drug.

Organizations who choose to test for marijuana should continue to follow Federal law which classifies marijuana as an illegal, Schedule I controlled substance. If you need help understanding local law or what your company’s drug testing policy should say, reach out to our expert staff at 503-409-7609.