Washington State Passes Bill Limiting Pre-Employment Testing for Cannabis

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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.”

What Does the Bill Say?

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.”

What Do Employers Need to Know?

Under SB 5123, employers cannot discriminate against an applicant during the hiring process if the discrimination is based on:

• The individual’s use of cannabis off-the-job and away from the workplace.
• A required drug test that indicates the presence of “nonpsychoactive cannabis metabolites” in the hair, blood, urine, or bodily fluid.

Employers can:

• Base initial hiring decisions on “scientifically valid drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.”
• Maintain a drug- and alcohol-free workplace.

Meet any “rights or obligations” required by federal law or regulation.

• Continue testing as normal for all situations outside of pre-employment, such as post-accident, reasonable suspicion, etc.
• Test applicants for a “spectrum” of controlled substances that includes cannabis, as long as the cannabis results cannot be provided to the employer and the tests adhere to the entirety of the law.

Who Does SB 5123 Not Apply To?

• SB 5123 does not apply to applicants for the following roles:
• Positions requiring federal government background investigation or security clearance.
• General authority Washington law enforcement positions as defined in RCW 10.93.020.
• Fire department, fire protection district, or regional fire protection service authority positions.
• First responder positions not included in the prior two definitions, including public or private 911 emergency communications systems dispatchers or positions responsible for the provision of emergency medical services.
• Corrections officers with a jail, detention facility, or Department of Corrections. This includes positions directly responsible for the custody, safety, and security of those confined to the aforementioned facilities.
• Airline or aerospace industry positions.
• Safety-sensitive positions for which “impairment while working presents a substantial risk of death.” Such positions must be identified by the employer prior to an individual’s application for employment.

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.

Next Steps for Employers

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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