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The day has finally come. As of July 8, people in Washington state can legally purchase small amounts of marijuana and smoke pot privately without fear of criminal repercussions from the state.

Peering over the Columbia River, many Oregon employers worry about what this could mean for them. What if a worker commutes from Vancouver and shows up with “legal pot” in his system? How could that be treated under an employment policy? And could any workers travel across the Interstate Bridge, purchase weed legally and then claim lawful behavior if they show up to work high? Where can an employer draw the line?

The case of Mike Boyer and his Washington employer, TrueBlue Labor Ready, might help explain the situation best.

Mike wanted to be the first person in the state of Washington to purchase marijuana legally, so he prepared well. He was first in line to camp out in front of Spokane Green Leaf and waited more than 20 hours until the doors opened. He was so proud of his position that he invited news crews to watch and record him making the historic purchase when the store opened at 2 p.m. He even allowed them to follow him back to his house, where he legally smoked pot for the cameras.

Mike didn’t realize (or didn’t care) that his managers at TrueBlue saw the news report, until they asked him to come in to take a drug test within the next 24 hours. Of course, he tested positive for marijuana, and it should come as little surprise that he was immediately terminated for violating the company’s zero-tolerance drug rules. Thus he was in the headlines for the second time in two days for falling victim to his employment policies.

But there’s a twist – his employer soon learned that he was actually on a pre-planned day off work on July 8, and thus realized they couldn’t prove that he was under the influence of the drug while on duty. So on July 9, they rehired him and apologized for the misunderstanding.

Mike had a pretty relaxed attitude about the whole thing. “It all worked out,” he was quoted as saying after he appeared in the news headlines for the third time in three days.

So, what can Mike’s situation teach us about how to handle the inevitable situation wherein an employee claims that he can’t be legally fired because marijuana is now legal in Washington?

First things first. The new law does not say that employees are allowed to use the drug at work in Washington, and it does not provide individuals comfort should they show up for work with the drug remaining in their system. But that might not stop employees from claiming that they can’t be touched, arguing that recreational pot is now legal.

Further, the Washington law sets a standard for marijuana “impairment” based on how much THC, the drug’s active ingredient, is in the bloodstream; some employees might even claim that they should not be in violation of workplace policies if they are below “impairment” levels set by law. This is especially true because THC drops below the legal impairment level within hours, but certain marijuana remnants can show up in a drug test days after use.

No fear, employers. Despite these anticipated arguments, employers are in no way required to amend their workplace drug and alcohol policies to accommodate the new law. Just because marijuana is legal under certain circumstances doesn’t mean an employer has to tolerate it in an employee’s system while at work.

After all, alcohol is legal across the country, but an employee who sneaks a bottle into work or shows up to work drunk can certainly be terminated. Marijuana is no different, and employers can remind employees of this before they think about breaking policies.

Further, the law does not change a 2011 Washington Supreme Court decision that found employers are permitted to discipline or terminate medical marijuana users who violate workplace drug policies, and are not required to accommodate an employee’s use of medical marijuana.

And finally, Oregon workers have absolutely no right to claim that any impairment that shows up in their system is somehow protected if they bought or ingested the drug in Washington, because the law offers them no safety net in that respect.

Employers continue to have legitimate reasons for implementing and applying policies prohibiting employee use of marijuana at work, and requiring that employees not have traces of marijuana in their system while at work, even if the substance is legal in their home state or a border state. (And don’t forget that marijuana is still considered illegal under federal law.)

Employers should continue to apply their zero-tolerance drug and alcohol policies, drug testing policies and prohibitions against the possession of the drug on company property. To avoid any confusion as to how workplace policies apply to recreational use, I recommend that company policy be issued in writing to applicants and employees, and that it clearly indicate that the use of marijuana – whether for recreational or medical purposes – is prohibited just as is any other controlled substance. Further, policies should prohibit any detectable level of drug in an employee’s system to avoid any confusion with the state’s “impairment” standard.

Mike’s employer decided to cut him a break because they might not have been able to prove that he was impaired while on duty, and maybe also because they didn’t want to bear the brunt of the negative publicity. However, this doesn’t mean that employers can’t enforce their policies consistently and stringently. If an employee decides to toke up in Vancouver over the weekend, and then shows up to work with traces of marijuana in his or her system on Monday morning, feel free to take disciplinary action as with any other violation of anti-drug rules.

Rich Meneghello is a partner in the Portland office of Fisher & Phillips LLP, which is dedicated to representing the interests of management. Contact him at or 503-205-8044, or follow him on Twitter – @pdxLaborLawyer.