Washington State was one of the first two states to legalize recreational cannabis when voters passed I-502 in Nov. 2012.
Since that time, it has been legal for adults ages 21 and older to possess and consume small amounts of cannabis for recreational use.
While recreational marijuana has now been legal for more than a decade in Washington, employers have previously been allowed to deny employment to applicants who fail pre-employment drug screens for marijuana. Employers were also allowed to fire employees for cannabis use outside of work.
The passage of Washington SB 5123 has changed the landscape of pre-employment marijuana testing and what employers can do when employees use marijuana during off-hours.
Here’s what you need to know about upcoming changes to ensure you are prepared.
Key Takeaways
- SB 5123, which changes employer practices regarding marijuana testing in Washington State, is effective on Jan. 1, 2024.
- This law prohibits basing employment decisions on the results of marijuana tests that check for the presence of non-psychoactive marijuana metabolites.
- Employers can still test for the presence of the psychoactive component of THC as well as for the presence of other illicit substances, and they can also continue to conduct post-accident and reasonable suspicion drug tests.
- The law includes multiple exceptions, including police officers, firefighters, EMS workers, corrections officers, jobs requiring federal clearances, and employer-identified safety-sensitive jobs.
- Employers should review and update existing drug-testing policies to avoid potential legal liability.
Law Changes Employment Practices for Marijuana Use
Washington SB 5123 was passed by the legislature and signed into law on May 9, 2023, by Governor Jay Inslee.
This law, which will be effective as of Jan. 1, 2024, changes employment practices surrounding the use of recreational marijuana by applicants and employees outside of work.
The state legislature passed this law to resolve discrepancies between how employers treat marijuana use and the fact that recreational marijuana is legal in the state.
Under this law, employees and applicants are protected against adverse employment actions based on their use of cannabis outside of work when it doesn’t affect their job performance.
Because of the new law, employers must be careful not to discriminate against applicants and employees based on their use of marijuana outside of work.
Drug Screens and Marijuana Testing Under the New Law
Employers are not prohibited from conducting pre-employment drug screens for cannabis under the new law, but this is true with a major caveat.
Pre-employment marijuana screens that test for non-psychoactive metabolites of cannabis in urine, blood, hair, or saliva are not allowed.
However, many marijuana drug screens test for metabolites, which are chemical substances indicating past use of marijuana but not necessarily current impairment.
Under the new law, employers can require applicants to submit to pre-employment drug screens that check for the presence of several controlled substances, including marijuana. However, if the results indicate the presence of non-psychoactive metabolites of cannabis, those related to cannabis can’t be reported to the employer.
Employers can require drug tests and base initial hiring decisions on valid drug screens that rely on methods that check for psychoactive components of cannabis.
For example, the presence of Delta-9 THC, which is the primary psychoactive component of marijuana, would indicate very recent use and potential impairment.
Other Employment Drug Screens
Notably, the new law does not affect an employer’s right to maintain a drug-free workplace or to conduct suspicion-based drug screens on current employees.
Employers can conduct post-accident drug screens or tests based on a reasonable suspicion an employee is under the influence of marijuana at work and base adverse employment actions on positive results.
The law does not give employees the right to use or possess marijuana in the workplace or to work while impaired by marijuana.
Exceptions
SB 5123 includes several exceptions, including:
- Jobs requiring federal security clearances or federal background investigations
- Police officers
- Firefighters
- Other first responders, including dispatchers and emergency medical services (EMS)
- Corrections officers in detention facilities, jails, or the Washington Department of Corrections
- Aerospace and airline workers
- Safety-sensitive jobs, which must be identified before applicants submit applications
- Jobs for which pre-employment marijuana testing is required by state or federal law
The new law limits when and how employers can conduct marijuana testing. However, they can still test for impairment caused by recent cannabis consumption based on a reasonable suspicion an employee is under the influence or when an employer is hiring for one of the above-listed excepted positions.
Know Before You Hire
Oral Fluid Tests as an Alternative
Some employers are turning to oral fluid or saliva tests instead of urine drug screens because of their convenience, ease of administration, and ability to test for the presence of psychoactive components of marijuana along with other illicit substances.
These tests involve swabbing an individual’s saliva for testing and have been gaining in popularity.
Recently, the Federal Motor Carrier Safety Administration (FMCSA) of the U.S. Department of Transportation (DOT) amended the DOT drug-testing rule to allow for oral fluid testing. Previously, only urine screens were allowed for DOT drug tests used for safety-sensitive transportation jobs.
What Employers Should Do
1. Review Existing Policies
With SB 5123’s upcoming effective date of Jan. 1, 2024, employers must take steps now to review and make necessary changes to their procedures for handling the use of marijuana by applicants and employees.
Employers should carefully review their workplace drug-testing policy and update them to reflect the new law.
Employers who do not meet an exception to the new law should remove pre-employment marijuana testing requirements that require checks for non-psychoactive marijuana metabolites.
2. Outline Procedures for Post-Accident and Reasonable Suspicion Tests
The updated policy should include procedures for when post-accident and reasonable suspicion tests might be required and how they should be conducted.
3. Consider Oral Fluid Tests
Employers might want to choose oral fluid testing because of its ability to check for psychoactive components of marijuana or investigate other drug screens that do not return positive results based on the presence of non-psychoactive metabolites.
4. Identify and Define Safety-Sensitive Jobs
Employers should identify all safety-sensitive positions that might necessitate drug tests, including marijuana tests.
For example, positions involving the operation of machinery, provision of care, or other similar roles might be safety-sensitive jobs requiring marijuana testing.
Any positions identified as safety-sensitive roles should be clearly defined, and employers should include the required drug-testing disclosures in their postings to fill these jobs.
5. Consider Eliminating Pre-Employment Marijuana Testing for Non-Excepted Positions
Employers hiring people to fill jobs that don’t meet an exception to the new law might consider eliminating pre-employment marijuana screens while still testing for the presence of other illegal substances that could impact workplace safety.
6. Train HR Staff
Once the policy has been updated, employers should thoroughly train HR staff to ensure they understand the changes and the new drug-testing procedures to prevent potential legal violations and liability.
7. Train Current Employees
Employers should train their existing employees about the new law and how it might affect their workplace drug testing policies.
They should emphasize their dedication to a safe work environment and ensure employees understand the new law doesn’t mean that marijuana use, possession, or impairment in the workplace will be allowed.
8. Consult Legal Counsel
To ensure their drug-testing policies and programs comply with the new marijuana law and to reduce potential liability risks, employers should consult legal counsel.
Turn to iprospectcheck for Compliant Employment Drug Screens
Many employers in Washington conduct drug screens to protect the safety of their employees and customers.
Washington’s new marijuana and employment law makes it important for employers to review their drug-testing policies and make changes to reduce liability risks.
At iprospectcheck, we continuously review changes in the law to ensure our drug tests remain compliant.
To learn more and receive a free drug testing quote, contact us today: (888) 509-1979
DISCLAIMER: The resources provided here are for educational purposes only and do not constitute legal advice. Consult your counsel if you have legal questions related to your specific practices and compliance with applicable laws.
