Governor Inslee of Washington signed Senate Bill 5123 (SB 5123) into law this week, effectively limiting employer rights in the state to pre-employment test for cannabis and take action based on positive results. Employers are required to comply by January 1, 2024. The newly passed bill severely limits an employer’s ability to test applicants for most positions for cannabis. Specifically, employers cannot discriminate in hiring based on a drug test that detects the presence of “nonpsychoactive cannabis metabolites.”
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Governor Inslee of Washington signed Senate Bill 5123 (SB 5123) into law this week, effectively limiting employer rights in the state to pre-employment test for cannabis and take action based on positive results. Employers are required to comply by January 1, 2024. The newly passed bill severely limits an employer’s ability to test applicants for most positions for cannabis. Specifically, employers cannot discriminate in hiring based on a drug test that detects the presence of “nonpsychoactive cannabis metabolites.”
Similar to California’s recently passed AB 2188, SB 5123 starts with a section making declarations about the history of cannabis in the state, cannabis in the workplace, drug testing, and more. Specifically, SB 5123 states:
“Many tests for cannabis show only the presence of nonpsychoactive cannabis metabolites from past cannabis use, including up to 30 days in the past, that have no correlation to an applicant’s future job performance. Applicants are much less likely to test positive or be disqualified for the presence of alcohol on a pre-employment 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.”
SB 5123 provides no detailed definition for what constitutes a “nonpsychoactive metabolite.”
Under SB 5123, employers cannot discriminate against an applicant during the hiring process if the discrimination is based on:
Employers can:
Meet any “rights or obligations” required by federal law or regulation.
Additionally, SB 5123 does not preempt state or federal laws that require pre-employment testing for controlled substances. This includes laws requiring testing or the way testing is performed as a condition of employment, laws pertaining to the receipt of federal funds or licensing-related benefits, or federal contracts requiring testing.
Washington state employers are required to comply with SB 5123 by January 1, 2024. Impacted employers should carefully review and if necessary, update their policies to ensure compliance.
The full text of the bill can be found at the following link: https://lawfilesext.leg.wa.gov/Biennium/2023-24/Pdf/Bills/Senate%20Bills/5123-S.pdf.
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