On May 9, 2023, Governor Inslee signed into law SB 5123 (The Law), which protects job applicants from hiring discrimination if they engage in lawful use of cannabis outside of the workplace. The Law takes effect on January 1, 2024 and can be found in its entirety here: https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bills/Senate%20Passed%20Legislature/5123-S.PL.pdf?q=20230517151255
The Law will prohibit an employer from discriminating against a person in hiring, termination, or any term or condition of employment, 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.
What this means is that beginning in 2024 it will become unlawful for an employer to discriminate based upon a person’s use of cannabis off the job and away from the workplace in Washington. However, unlike other states with similar laws, employers may still rely on cannabis testing in employment decisions provided that the testing detects the active presence of THC in the employee’s or prospective employee’s system instead of cannabis metabolite remnants.
In more technical detail, the current most common laboratory industry testing for marijuana uses urine for the detection of 11-Nor-9-carboxy-Δ9-tetrahydrocannabinol, a non-psychoactive metabolite of the primary psychoactive marijuana ingredient tetrahydrocannabinol (THC). These tests delineate that psychoactive marijuana has been used but does not delineate the current presence of psychoactive marijuana compounds. Per the language above, this Law will require testing for currently psychoactive ingredients from marijuana for a decisional employment impact to be taken. Samples other than urine, such as oral fluids, currently test for the presence of THC and it is probable that testing in Washington will shift to accommodate this Law. First Advantage’s Chief MRO also believes complying with this law will require a shift in testing from urine to oral fluid.
There are some general exceptions to this Law for jobs in certain industries and safety-sensitive positions, including:
- Positions that require a federal government background investigation or security clearance;
- Positions with Washington law enforcement agencies; fire departments, fire protection districts, or regional fire protection service authorities;
- Other first responder positions not listed above, including 911 dispatchers with public or private emergency communication systems or positions responsible for providing emergency medical services;
- Positions as corrections officer with a jail, detention facility, or the department of corrections, including any position directly responsible for the custody, safety, and security of persons confined in those facilities;
- Positions in the airline or aerospace industries; or
- Positions categorized as “safety sensitive” when impairment while working presents a substantial risk of death. *Note: Employers must identify these positions before the applicant applies for the position.
The law does not preempt state or federal laws requiring an applicant to be tested for drugs. This includes testing that is related to the receipt of federal funding or federal licensing-related benefits or as required by a federal contract.
Given the confusion surrounding the Law generally, testing, and permitted action, it will be important to monitor evolving regulation and testing options this year and in 2023. In the interim, employers should continue to monitor the impacts of this law, as will First Advantage, consult with their legal counsel, and review their drug testing policies to ensure that their practices will comply with the new law by the time it takes effect.
Washington employers should review their drug and alcohol testing policies to ensure that they will comply with the law as of January 1, 2024.
The foregoing commentary is not offered as legal advice but is instead offered for informational purposes. First Advantage is not a law firm and does not offer legal advice. The foregoing commentary is therefore not intended as a substitute for the legal advice of an attorney knowledgeable of the user’s individual circumstances or to provide legal advice. First Advantage makes no assurances regarding the accuracy, completeness, currency, or utility of the following information. Regulatory developments and impacts are continuing to evolve in this area.