Cultiva Law: Washington May Soon Protect Job Applicants Who Use Cannabis


Over a decade ago, Washington became the first state to legalize cannabis for recreational use. But the state still permits employers to screen job applicants for cannabis use, creating a fundamental disconnect between what people can legally do off the job and Washington employers’ hiring practices.

That may finally be about to change. A new proposed law, SB 5123, passed the Washington State Senate last month with a 28-21 vote. The bill recently earned approval from lawmakers in the House Labor and Workplace Standards Committee with a 6-3 vote. It will now proceed to another vote in the House.

Here’s what you need to know about SB 5123.

What the Proposed Washington Law Says About Screening for Cannabis

The proposed cannabis bill recognizes the inherent problem with screening for cannabis: those tests have nothing to do with an applicant’s current or future capabilities. Cannabis tests show non-psychoactive cannabis metabolites from prior cannabis use for as long as 30 days. As the bill astutely notes, this prior use has “no correlation to an applicant’s future job performance.”

The proposed law also notes a discrepancy between how alcohol and cannabis are treated. While both are legally permitted substances, applicants are significantly less likely “to test positive or be disqualified for the presence of alcohol on a pre-employment screening test compared with cannabis.”

Legislators proposed the bill to stop employers from restricting candidates’ job duties based on their past cannabis use. If passed, the law will prohibit discrimination against a job applicant for the legal use of cannabis outside of work and away from the workplace. It also prohibits discrimination against an applicant if a required drug screening test finds non-psychoactive cannabis metabolites in the applicant’s hair, blood, urine, or other bodily fluids.

Important Exceptions in the Proposed Washington Law

 The bill carves out several notable exceptions for employers. First, employers would still be permitted to make hiring decisions based on drug tests that don’t screen for non-psychoactive cannabis metabolites. Further, employers would still have the right to maintain a drug- and alcohol-free workplace. The law also would not limit an employer’s ability to test for drugs or take action in the event of a positive drug screen at other points during the employment relationship, such as after an accident or on suspicion that an employee is impaired on the job.

There’s one final important exception: the law’s non-discrimination provision doesn’t apply to jobs that involve federal security clearances or background investigations, in the airline or aerospace industries, or in safety-sensitive positions where impairment presents a “substantial risk of death,” so long as the employer indicates that such a position is “safety-sensitive” before the candidate applies for employment. 

What Employers Should Do Now

If the law is passed, it will take effect on January 1, 2024. Watch this blog for additional updates—and in the meantime, consider revisiting your policies on screening potential hires for cannabis use. If you conduct drug screening but don’t have a legitimate, safety-based reason for it, it might be time to ditch that requirement.

Get in touch to learn more about how we can help businesses navigate the cannabis laws in Washington, California, Nevada, and Oregon.

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Matthew Ginder – Greenspoon Marder
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William Bogot – Fox Rothschild

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