On Tuesday, May 9, 2023, Governor Inslee signed into law Senate Bill No. 5123, which will protect prospective employees from discrimination in hiring due to their lawful, off-duty use of marijuana. With this law, Washington will join the growing list of states offering some workplace protections to workers who engage in “off-duty” marijuana use. The new law is not a “go-ahead” for all Washington employees to engage in recreational marijuana use without employment consequences, however. Governor Inslee has emphasized the law does not protect all such use and does not prevent employers from establishing policies regarding a drug-free workplace. The new law goes into effect on January 1, 2024.
The new law prohibits employers from “discriminating” against a person in hiring based on the person’s lawful use of cannabis off the job and away from the workplace. Specifically, employers will be unable to rely upon pre-employment drug tests that screen for the presence of “non-psychoactive” cannabis metabolites to make hiring decisions. Washington has long been a state where marijuana use, in various forms, is lawful – the state has permitted medicinal use since 1998 and recreational use since 2012.1
The law’s stated purpose is to bring marijuana as a substance on the same footing as alcohol for consideration in pre-employment testing, stating:
Applicants are much less likely to test positive or be disqualified for the presence of alcohol on a preemployment screening test compared with cannabis, despite both being legally allowed controlled substances. The legislature intends to prevent restricting job opportunities based on an applicant’s past use of cannabis.
What the New Law Requires and Notable Exceptions
The new law makes it unlawful for an employer to “discriminate against a person in the initial hiring for employment” if the discrimination is based upon either (i) “the use of cannabis off the job and away from the workplace” or (ii) based on a drug screening test “that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”
Consistent with the prohibition on relying upon non-psychoactive test results, employers that continue to conduct pre-employment testing for marijuana must use tests that are “scientifically valid drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.”
There are certain notable exceptions to this blanket rule limiting an employer’s ability to act based on an individual’s off-duty marijuana use. Specifically, testing for marijuana will continue to be allowed in the following situations:
- When testing for purposes other than pre-employment testing;
- When employers use “scientifically valid” testing in pre-employment screenings that do not screen for non-psychoactive cannabis metabolites;
- When state or federal law requires the applicant to be tested or dictates the way tests are administered, as a condition of employment, receiving federal funding or federal-licensing-related benefits, or as required by a federal contract; or
- When an applicant seeks a position: (i) requiring a federal government background investigation and security clearance; (ii) involving work with public safety agencies such as law enforcement agencies, fire departments, and first responders (including dispatchers); (iii) as a corrections officer; (iv) within the airline or aerospace industries; and/or (v) another “safety sensitive” position. “Safety sensitive” positions are defined as those “for which impairment while working presents a substantial risk of death.” Employers will be required to identify which positions they consider safety-sensitive prior to the applicant’s application for employment.
Washington employers should prepare for the January 1 implementation date by reconsidering which applicants they will test for cannabis. Then, either ensure the positions fit within one of the enumerated exceptions, including whether such positions fall within the narrow “safety sensitive” definition, or test using methods that seek only the presence of psychoactive THC in the individual’s test sample. Finally, where necessary, Washington employers should update their drug and alcohol testing policies and hiring materials to ensure compliance with the new law.
Source: Littler Mendelson PC – Rachel Ring, Goldie Davidoff and Jennifer Chierek Znosko