Alert: Initiatives on recreational marijuana and same-sex marriage raise questions for employers(WA)

Now that Washington voters have voted to legalize recreational marijuana use (I-502) and endorse same-sex marriage (R-74), employers have been asking whether these laws will impact their employment policies. Here’s Vigilant’s take on these two issues.

Recreational marijuana use
We don’t expect I-502 to affect employers’ ability to enforce their drug policies. The new law doesn’t require employers to make any changes, or to accommodate marijuana use. Under the state’s pre-existing statute on medical use of marijuana, the Washington Supreme Court ruled that employers don’t have to accommodate such use, and can enforce their existing drug policies. If medical use wasn’t protected, it seems extremely unlikely that recreational use would be protected. Also, marijuana is still illegal under federal law. The difference now is that individuals who use marijuana within the limits established in I-502 won’t be criminally prosecuted by the state.

Even though you’re not required to make a change to your existing drug policies, you should communicate your expectations to employees. If you would still take disciplinary action against an employee who tests positive for marijuana, it’s important to let employees know so they understand that recreational use may put their jobs at risk. Also, ask yourself whether some of your employees are currently permitted to drink alcohol while at company functions (e.g., a glass of wine at a sales dinner). Would you permit those same employees to smoke a joint during the function? If not, you should communicate your policy now.

You may be wondering whether I-502 will impact the Washington smoke-free workplace law. We believe the answer is no, because that law defines “smoke” or “smoking” as “the carrying or smoking of any kind of lighted pipe, cigar, cigarette, or any other lighted smoking equipment.” So, you should still enforce your smoke-free workplace rules regardless of whether a cigarette is filled with tobacco or marijuana. However, there’s a slight wrinkle that may require a legislative correction: The statute refers specifically to the need to prevent tobacco smoke from entering doors, open windows, and air intakes, in establishing a smoke-free zone within 25 feet of such areas.

Recreational marijuana use will be permitted in Washington for people who are at least 21 beginning December 6, 2012 (30 days after the vote), but the state has until December 1, 2013, to write regulations to implement the initiative.

Same-sex marriage
We believe the primary effect of R-74 on employers will be in the implementation of leave under the federal Family and Medical Leave Act (FMLA). Currently, Washington state law treats registered same-sex domestic partners the same as spouses. Registered domestic partners must have registered with the Washington Secretary of State and may be a same-sex couple, or an opposite-sex couple in which one person is at least 62 years of age.

Most health benefit plans already cover registered same-sex domestic partners in Washington, so we anticipate that married same-sex spouses will receive the same coverage, but you should check with your insurance carrier to be certain. The real impact is going to be FMLA leave. The federal FMLA specifically looks to state law to define who is a spouse for purposes of taking leave to care for a spouse with a serious health condition. The Washington Family Leave Act allows up to 12 weeks of leave to care for a registered domestic partner, similar to care for a spouse under the FMLA, but it’s the FMLA that mandates continuing the employee’s health insurance on the same basis as if he or she had continued to work. It’s also the FMLA that requires immediate reinstatement of health insurance upon returning promptly after leave if coverage is dropped due to the employee’s failure to pay his or her normal premium share.

If the leave is purely covered under the Washington Family Leave Act, and the employee loses health coverage due to a reduction in hours, that’s a COBRA-qualifying event and a COBRA notice must be sent, allowing the employee and dependents to continue coverage for a limited time by self-paying. If the leave is covered by FMLA, however, there’s no COBRA-qualifying event, even if coverage is dropped during the leave due to the employee’s failure to pay his or her usual share of the premium unless the employee is unable to return to work at the end of FMLA leave.

If a same-sex couple is married according to Washington state law, then it appears that the employee’s FMLA rights should be the same as for an opposite-sex married couple. It is possible that this may be challenged under the federal Defense of Marriage Act (DOMA), which declares that “spouse” refers to a person of the opposite sex who is a husband or wife, for purposes of interpreting federal law. The FMLA regulations, however, look to state law for the definition of “spouse.” Also, President Obama has ordered the Justice Department not to defend DOMA in court, and several cases finding DOMA unconstitutional have been appealed to the U.S. Supreme Court. Although this is still somewhat uncertain legal territory, employers can protect themselves by coordinating with their insurance carriers to ensure that the carriers are willing to treat same-sex married couples the same as opposite-sex married couples for purposes of FMLA leave. Employers can then follow the usual FMLA rules in providing protected leave and continued health insurance when an employee takes FMLA leave to care for a same-sex spouse with a serious health condition.

The new law also recognizes same-sex marriages that are performed in other states which allow such marriages. For employers in states that don’t recognize such marriages (such as Oregon, California, Idaho, and Montana), the Washington law has no effect on their FMLA leave obligations. DOMA provides that a state cannot be forced against its will to recognize another state’s same-sex marriage.

Under R-74, registered domestic partnerships will be automatically converted to marriages for same-sex couples as of June 30, 2014, unless they dissolve the domestic partnerships or get married before that date. Same-sex couples may marry in Washington beginning on  December 6, 2012 (30 days after the vote).