Update on Employment and Recreational Marijuana

Last May, SGFS posted a blog article entitled “Marijuana and Employment: What is truly ‘Green’ Workplace in Washington.”  Recently, the Washington State Human Rights Commission (“HRC”) updated its guidance on related issues in the workplace and specifically included changes to its “Guide to Disability and Washington State Nondiscrimination laws.” 

The link to these materials can be found here.

As detailed in SGFS’s blog post last year, marijuana (even for medical purposes) remains an illegal drug as a matter of federal law and therefore its use is something employer’s do not necessarily have to accommodate or permit by its actual or potential employees.  January’s update to the HRC’s website and written guidance reaches a similar conclusion and clarifies further that because “federal law prohibits the possession of marijuana, the Washington State Human Rights Commission has determined that the use of medical marijuana is not a reasonable accommodation for a disability.”  The HRC also states that “a claim of termination due to a disability because of the results of a drug test will most likely result in an immediate No Reasonable Cause Finding.”  This certainly indicates that any administrative claims filed with the HRC the grounds of disability discrimination for use of medical marijuana will be dismissed even if the use occurs during off-work hours.  The reason being employers cannot be forced to accept or allow accommodations that violate federal law. 

However, the HRC also states that its guidance and conclusions “does not preclude an individual from filing a case in state or federal court.”  This does not necessarily mean that any such claim would be successful, or even meritorious, but it does create confusion as to whether a related disability discrimination claim would survive initial efforts to dismiss on legal grounds.  It is most likely that the HRC’s language in this regard is more an indicator that its guidance does not preclude a person’s ability to access the judicial process by filing a legal claim for discrimination, even if that claim is not supported by the law. At the same time, it also serves as recognition that, in certain factual scenarios, a claim might be actionable in a court of law.  For now, employers should be on solid grounds if they refuse to provide an accommodation in the form of medical and/or recreational marijuana use.  Regardless, it is always recommended that companies obtain legal guidance from an attorney before making any decisions that might negatively impact its employees.

IMG_0906Attorney Mark Davis has been a practicing trial attorney in Washington since 2007 and has been honored with several awards.  He has litigated a variety of employment and commercial disputes, such as workplace issues involving discrimination, hostile environments, retaliation, and wage violations (to name a few). When Mr. Davis is not hard at work for his clients, he can be found playing a game of ping pong in our office rec center or spending time with his wife and young family.  These posts are meant to show employees some of the rights they have in the workplace and some possible pitfalls to avoid that come up in employee rights cases.  Please seek legal counsel for your own specific situations, cases are unique and have their own sets of circumstances to consider.  To get in touch with Mr. Davis contact our office by phone: 206-248-8100 or by email: info@sgfslaw.com, or visit or website for more information.