A new law prohibiting employers from making hiring decisions based on off-duty use of marijuana will take effect in the state of Washington next year.
The new law, SB 5123, is effective Jan. 1, 2024, and will also prohibit employers from making hiring decisions based on positive pre-employment drug test results finding an applicant to have non-psychoactive cannabis metabolites in their hair, blood, urine or other bodily fluids.
Recreational cannabis was legalized in Washington in 2012 and the new law is meant to ensure that the drug is treated the same as alcohol, which is also a legal substance. SB 5123 “is intended to prevent restricting job opportunities based on an applicant’s past use of cannabis, according to law firm Jackson Lewis PC.
The new law recognizes that cannabis metabolites will stay in an individual’s body for a long time and that most drug tests will detect non-psychoactive cannabis metabolites for up to 30 days after use. The idea is that, like off-duty alcohol use, past use of marijuana has no correlation to future job performance since it’s a legal substance.
Applicant testing allowed … but not really?
SB 5123 doesn’t “prohibit employers from basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites.” The law doesn’t explain what is meant by “non-psychoactive cannabis” and there currently aren’t any tests that can tell the difference between psychoactive and non-psychoactive metabolites.
What that means is that if there are no such drug tests developed by Jan. 1, 2024, employers won’t be able to test for marijuana on pre-employment drug tests, Jackson Lewis states.
Law doesn’t prohibit drug-free workplaces, post-accident testing
Drug- and alcohol-free workplaces are still allowed in the state and the new law doesn’t “affect any other rights or obligations of an employer required by federal law or regulation.” Post-accident and reasonable suspicion testing is still allowed and employers can still test for other drugs and alcohol.
SB 5123 doesn’t apply to applicants seeking:
- positions requiring federal government background investigations or security clearance
- certain law enforcement positions
- certain fire department positions
- first responder positions, including 9-1-1 dispatchers
- corrections officer positions
- positions in the airline or aerospace industries, and
- safety-sensitive positions.
This law doesn’t preempt state or federal laws that require an applicant to be tested for drugs, including testing related to the receipt of federal funding or federal licensing-related benefits or as required by a federal contract.