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December 20, 2023
Effective January 1, 2024, Washington State will prohibit employers from discriminating against job applicants based upon their off-duty use of cannabis or based upon an employer-required drug test that identifies non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. This new law (Senate Bill 5123) will go into effect more than a decade after Washington State legalized the use of recreational cannabis in 2012.
The rationale for this new law is that non-psychoactive cannabis metabolites remain in the body after it has metabolized any tetrahydrocannabinol (“THC”). As a result, drug tests can detect non-psychoactive cannabis metabolites in the body many weeks after the use of cannabis has occurred. Washington State’s Legislature concluded that past use of cannabis has no correlation to future job performance, especially given the fact that cannabis is a legal substance in the State.
However, several exceptions to this new law exist. First, it does not apply to certain law enforcement positions; certain fire department positions; first responder (and 911 dispatcher) positions or positions responsible for the provision of emergency medical services; certain correctional officer positions; airline or aerospace positions; and safety-sensitive positions for which impairment while working presents a substantial risk of death (an employer must identify these positions prior to seeking job applications).
In addition, the law does not preempt state or federal law requiring job applicants to be tested for controlled substances for positions receiving federal funding or licensing-related benefits, or as required by federal contract.
Finally, although employers can continue to use drug tests that screen for a variety of controlled substances, which may include cannabis, the cannabis results cannot be provided to the employer.
Notably, employers still can base hiring decisions on drug tests that do not screen for non-psychoactive cannabis metabolites. In addition, employers can continue to test for controlled substances during one’s employment, such as following a workplace accident or for suspicion of being under the influence while on the job. Finally, the law does not affect an employer’s right to maintain a drug- and alcohol-free workplace or any other right of an employer under federal law.
Employers should review their drug testing policies and procedures to ensure compliance with this new law.
*Special thanks to Ava Petrellese, our Paralegal, for her contributions to this article.
The author of this article, Maria V. Martin, is a member of the Bars of New Jersey, New York, Ohio, and Pennsylvania. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in New Jersey, New York, Ohio, Pennsylvania, 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.
