Washington Employers: New Law Creates Limits on Pre-Employment Drug Testing

Effective January 1, 2024, SB 5123 prohibits most Washington state employers from discriminating against a person in hiring based on the person’s lawful use of marijuana outside of the workplace, including relying on pre-employment drug tests that screen for “nonpsychoactive cannabis metabolites” when making hiring decisions.

“Nonpsychoactive cannabis metabolites” are the components of marijuana that are stored in the body after the tetrahydrocannabinol (“THC”), the principal psychoactive compound in marijuana, is metabolized.  Tests that detect these remaining non-psychoactive metabolites indicate that a person consumed marijuana sometime within the past 30 days or so.

In passing the new law, the state legislature noted that many tests for marijuana show only the presence of non-psychoactive cannabis metabolites from past cannabis use, which have “no correlation to an applicant’s future job performance.”  SB 5123 (to be codified at RCW Ch. 49.44).  Washington legalized recreational marijuana use in 2012.

According to the new law, employers may still base initial hiring decisions on “scientifically valid drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites,” so long as those findings are not associated with past cannabis use. In other words, via alternative testing methods such as oral swabbing, employers may still test for the psychoactive ingredient in cannabis (otherwise known as THC), which may better indicate recent use and impairment.

Employers may also still have an applicant screened for all controlled substances as long as the nonpsychoactive cannabis metabolites results are not shared with employer. Further, employers can continue to maintain a drug and alcohol free workplace, and test for controlled substances and alcohol during employment.

Exceptions

The new law does not apply to first responders, fire departments, the airline or aerospace industries, safety-sensitive positions where impairment while working presents a “substantial risk of death” (if the employer identifies the position as “safety-sensitive” before the candidate applies for employment,”), or federal employers, where testing is required under federal funding, or where testing is required by federal contract.

Next Steps

Washington employers should review their pre-employment drug testing policies and update them to comply with the new regulations.

For assistance with compliance, or any other employment law related matter, contact a member of Dunn Carney’s Employment Law team.

For more information please contact a member of Dunn Carney’s Employment Law Team.

Allyson S. Krueger, Partner
Phone: 503-417-5461
Email: akrueger@dunncarney.com

Lauren J. Russell, Partner
Phone: 503-306-5346
Email: lrussell@dunncarney.com

Samantha Baker, Law Clerk
Phone: 503-306-5335
Email: sbaker@dunncarney.com

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