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May 15, 2023
On May 9, 2023, Washington State enacted a new law that prohibits employers from basing hiring decisions on an applicant’s off-duty use of cannabis or the results of an applicant’s pre-employment drug test that reflects the presence of nonpsychoactive cannabis metabolites in the hair, blood, urine, or other bodily fluids.
In the new law, the Washington Legislature noted that the State’s legalization of recreational cannabis in 2012 “created a disconnect between prospective employees’ legal activities and employers’ hiring practices.” The Legislature seeks to prevent restricting job opportunities based on an applicant’s past use of cannabis, noting that nonpsychoactive cannabis metabolites can appear on a drug screen up to 30 days after cannabis use and noting that no correlation exists between an applicant’s past use of cannabis and the applicant’s future job performance.
Nevertheless, the law does not prohibit employers from (1) basing hiring decisions on scientifically valid drug tests that do not screen for nonpsychoactive cannabis metabolites; (2) maintaining a drug- or alcohol-free workplace or complying with federal law or regulation; or (3) testing for controlled substances during employment. Furthermore, the law does not apply to applicants seeking certain jobs, including: (a) positions requiring a federal government background investigation or security clearance; (b) some law enforcement positions; (c) some fire department positions; (d) first responders; (e) correction officers; (f) positions in the airline or aerospace industries; or (g) safety sensitive positions.
The law does not define “nonpsychoactive cannabis metabolites” and no current drug test distinguishes between psychoactive and nonpsychoactive metabolites. If no such test is developed before Washington’s law becomes effective on January 1, 2024, Washington employers will not be able to test for cannabis at the pre-employment stage.
Review your drug testing policies to ensure compliance with the new law by January 1, 2024.
The author of this article, Patricia Tsipras, is a member of the Bar of Pennsylvania. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Pennsylvania or Washington or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
