WHAT IDAHO EMPLOYERS SHOULD KNOW ABOUT MARIJUANA

As of April 1, 2015, 23 states and the District of Columbia have legalized marijuana use for medical purposes.  Four states, Washington, Oregon, Colorado and Alaska, have also legalized marijuana for recreational purposes.  Marijuana use for any purpose is currently illegal in Idaho.  However, on April 6, 2015, the Idaho House of Representatives voted 39-30 to approve a bill to legalize the use of Cannabis Oil for limited medical purposes.  The bill is now on its way to Governor Otter.  Otter can approve the bill, allow the bill to become law without his approval, or veto the bill.  If Governor Otter vetoes the bill, it can still become law if two-thirds of the members of both the senate and the house vote to override the veto. 

As of April 10, 2015, the bill’s fate remains unknown.  Should the present bill or any bill legalizing marijuana for any purpose pass in Idaho in the future, the law’s novelty virtually guarantees that employers will have little guidance about what the law means for them as employers, much less direction on whether and how they need to change employment policies relating to drug use to comply with the law. Further adding to employers’ likely uncertainty, marijuana use, possession, and distribution is illegal for any purpose under federal law. 

Existing Idaho laws allow employers to implement zero-tolerance alcohol and drug use policies.  The Idaho Employer Alcohol and Drug-Free Workplace Act (“the Act”) establishes voluntary drug and alcohol testing guidelines for employers.  Pursuant to the Act, private employers in Idaho may, but are not required to, condition employee hiring and continued employment on the employee’s ability to pass drug and alcohol tests. 

The law protects employers who implement such tests from employees bringing a cause of action against them for using positive test results as the basis for disciplinary or refusal-to-hire actions.  Under present law, that includes any employee or potential employee who test positive for THC, the active ingredient in marijuana.  Accordingly, while the law is certainly not set in stone, employers in Idaho may take action against employees who test positive for THC in the foreseeable future.

INSIGHTS FOR EMPLOYERS

Clear polices:  Have a clear policy regarding alcohol and drug testing and make sure your employees are aware of that policy.

Know the law:  Marijuana use is not currently legal in Idaho for any purpose.  However, if legislation is passed allowing marijuana use for limited medical purposes, the law may develop that effects employers’ rights to take action against medical-marijuana users under the Act.  For example, some states that have legalized marijuana for medical uses have changed their laws to prohibit employers from taking adverse action against medical marijuana users unless the users are clearly impaired at work.

Federal Contractors:  If you are a federal contractor, your workplace marijuana polices are governed by the Drug Free Workplace Act, which requires the contractors to enforce zero-tolerance policies regarding the use of illegal drugs in the workplace regardless of state laws legalizing any type of marijuana use.

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.