Washington State Limits Pre-Employment Marijuana Testing
New Washington State legislation provides broad protections for adult users of marijuana and imposes limitations on employment drug testing, particularly related to cannabis. Employers must prepare to comply by January 1, 2024, the bill’s effective date.
Employers in Washington State face new challenges and considerations regarding drug testing practices with the passage of Senate Bill 5132 (SB 5132). The legislation provides broad protections for adult users of marijuana and imposes limitations on employment drug testing, particularly related to cannabis. Employers must prepare to comply by January 1, 2024, the bill’s effective date.
Washington legalized the recreational use of marijuana in 2012. Ten years later, as part of the 2022-2023 legislative session, lawmakers in Washington worked to reconcile a “disconnect between prospective employees’ legal activities and employers’ hiring practices,” considering cannabis use analogous to alcohol consumption. SB 5132 identifies that drug tests may report 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.” The bill notes, “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.”
Past Cannabis Use Cannot Impact Job Opportunities
SB 5132 includes provisions to protect employees from adverse actions solely based on marijuana usage if it occurs outside of work hours and does not impair job performance. Employers should be cautious not to discriminate against employees or applicants based solely on off-duty cannabis use.
While SB 5132 does not explicitly prohibit pre-employment marijuana testing, employers may not require a drug test indicating “nonpsychoactive cannabis metabolites” in hair, blood, urine, or bodily fluid. However, employers may require drug tests that assess a range of controlled substances, including cannabis, if the results provided to the employer do not report findings associated with past cannabis use.
Testing for Psychoactive Cannabis Metabolites
While SB 5132 limits pre-employment marijuana testing, employers may still be interested in identifying recent cannabis use or psychoactive cannabis metabolites for specific positions or safety concerns. Some alternative testing options may provide insights while respecting the new legislation.
Oral fluid testing, also known as saliva testing, is gaining popularity due to its ability to detect recent drug use. This method can identify the presence of psychoactive cannabis metabolites shortly after cannabis consumption, usually within a few hours to a few days. It provides a window of detection that aligns with identifying impairment rather than historical use.
Employers may also conduct drug testing after accidents or incidents where drug use may be a factor. Additionally, if there is reasonable suspicion of an employee being impaired on the job, drug testing can be administered to ensure workplace safety. Such tests can detect psychoactive cannabis metabolites if used within a reasonable timeframe after cannabis use.
SB 5132 does not apply to jobs that involve federal security clearances or background investigations, in law enforcement, the fire department, first responders, corrections officers, the airline or aerospace industries, or in safety-sensitive positions where impairment while working presents a “substantial risk of death,” if the employer identifies the position as “safety-sensitive” before the candidate applies for employment.
Practical Considerations for Employers
In light of SB 5132 and the limitations it imposes on drug testing, employers may consider the following practical considerations to ensure compliance and maintain a safe and productive workplace:
Policy Review and Revision: Employers must review and revise their drug testing policies to align with the provisions of SB 5132. Remove any pre-employment marijuana testing requirements that test or report nonpsychoactive cannabis metabolites and ensure that policies clearly outline the permissible circumstances for drug testing, such as post-accident or suspicion-based situations.
Safety-Sensitive Positions: Identify safety-sensitive positions within your organization that may require drug testing, including testing for psychoactive cannabis metabolites. Clearly define these positions and their related job duties to ensure appropriate testing and compliance with safety regulations. Make required disclosures in safety-sensitive job postings.
Education and Communication: Proactively educate employees about the changes brought about by SB 5132. Communicate the revised drug testing policies, the reasons behind the changes, and the continued commitment to maintaining a safe work environment. Provide resources for employees to seek clarification or address any concerns.
By balancing safety concerns and individual rights, employers can comply with SB 5132, foster a positive work environment, and ensure legal compliance. Staying informed, seeking legal guidance if needed, assessing options with drug testing vendors, and maintaining open communication channels with employees will contribute to a smooth transition and help employers navigate the evolving landscape of employment drug testing in Washington State.
Release Date: May 23, 2023
Alonzo Martinez is Associate General Counsel at HireRight. Mr. Martinez is responsible for monitoring and advising on key legislative and regulatory developments globally affecting HireRight’s service delivery. His work is focused on ensuring HireRight’s performance as a consumer reporting agency and data processor complies with relevant legal, regulatory, and data furnisher requirements. Mr. Martinez obtained his Juris Doctorate from the University of Colorado, and is licensed by the Supreme Court of the State of Colorado. He is a member of the Colorado Bar Association Employment Law Division, the Association of Corporate Counsel, and the Professional Background Screening Association.