- Prohibit an employer from making hiring decisions based on a scientifically valid drug screen, so long as it does not screen for non-psychoactive cannabis metabolites;
- Affect the right of an employer to maintain a drug and alcohol free workplace or obligation to do so under federal law;
- Apply to any cannabis testing other than pre‑employment testing; or
- Apply to an applicant seeking a position that requires a federal government background investigation or security clearance, a first responder or law enforcement type position, a position in the airline or aerospace industry, or a safety sensitive position for which impairment while working presents a substantial risk of death.
Fisher Phillips: Washington State Restricts Pre-Employment Cannabis Testing: 4 Key Takeaways for Employers
Washington state is joining the growing trend to provide some level of protection for off-duty recreational cannabis use and will impose new restrictions on employers that conduct pre-employment drug screening. Specifically, since recreational cannabis use is legal in the state, the Washington State Legislature is concerned that there may be a disconnect between an employee’s legal off-duty activities and an employer’s hiring criteria. What are the four main takeaways for employers as you prepare for the new law to take effect in January 2024?
1. Limitations on Drug Screening
Washington state lawmakers are aiming to protect job seekers from potentially losing employment opportunities due the use of non-psychoactive cannabis products or lawful, off-duty use of psychoactive cannabis that does not correlate to job performance or indicate on-the-job intoxication.
As a quick refresher, CBD products and other cannabinoids, for example, are generally considered “non-psychoactive,” meaning that they don’t get you high. Products that contain THC – the “psychoactive” component in cannabis – may cause intoxication but are legal in Washington state. Moreover, THC, after it is metabolized, is stored in the body as a non-psychoactive cannabis metabolite.
While employers can monitor employees for on-the-job THC intoxication, the state legislature has made it unlawful, starting January 1, 2024, for an employer to discriminate against a job applicant based on cannabis use that is off the job and away from the workplace. SB 5132 also makes it unlawful for an employer to deny a job to an applicant because of a drug test that finds the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
2. Exceptions May Apply
You should note that the law contains several exceptions. Specifically, it does not do the following: