Governor Jay Inslee signed Senate Bill 5123 into law on May 15, 2023, restricting pre-employment cannabis testing in Washington State. The law takes effect on January 1, 2024.
Under the new legislation, it is unlawful for an employer to discriminate against a person in the initial hiring for employment if the discrimination is based upon the applicant’s use of cannabis off the job and away from the workplace. In addition, the new law prohibits the refusal of an applicant based on an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
Washington state lawmakers aim to protect job seekers from potentially losing employment opportunities due to non-psychoactive cannabis products or lawful, off-duty use of psychoactive cannabis that does not correlate to job performance or indicate on-the-job intoxication.
CBD products and other cannabinoids are considered non-psychoactive, meaning they do not get the user high. Products that contain THC, the psychoactive component in cannabis, may cause intoxication but are legal in Washington state. Moreover, after THC is metabolized, it is stored in the body as a non-psychoactive cannabis metabolite.
The law does allow employers to make hiring decisions based on a scientifically valid drug screen, so long as it does not screen for non-psychoactive cannabis metabolites. In addition, drug testing still applies in postaccident testing or testing because of a suspicion of impairment or being under the influence of alcohol, controlled substances, medications, or other substances while on the job.
Cannabis drug testing may still apply for positions requiring a federal government background investigation or security clearance, Washington law enforcement agency, fire department, first responder, 911 operator, corrections officer, airline or aerospace industry position, or safety officer.
The new law will have a significant impact on employers in Washington State. Employers must review their pre-employment drug testing policies to ensure compliance with the new law. Employers must also be careful about interpreting drug test results, as they can no longer automatically disqualify applicants who test positive for cannabis.
Employers unsure how to comply with the new law should consult an employment attorney.
*This information simplifies complex Acts as it is understood by Time Equipment Company. It is not to be taken as legal advice. The regulations for this program are changing. For further information, contact the Washington Department of Labor and Industries.