Washington Imposes New Limits on Pre-Employment Testing for Lawful Cannabis Use

Employers in Washington who engage in pre-employment drug testing must re-evaluate their drug testing programs based on a new Washington law effective January 1, 2024. On May 9, 2023, Governor Inslee signed into law SB 5123, which protects job applicants from hiring discrimination if they engage in lawful use of cannabis outside of the workplace. The Legislature passed this law recognizing that though applicants may consume cannabis legally, they could still be disqualified from jobs during initial hiring by a pre-employment drug test, which detects cannabis consumed up to 30 days before.

The new law prohibits most Washington employers from discriminating against qualified job applicants during the initial hiring process, if the basis for discrimination is either:

(a) the person's use of cannabis outside of the workplace, or

(b) an employer-required drug screening test determines the applicant has nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

Effects of the New Law

What Does the Law Require?

Most Washington employers will soon be prohibited from refusing to hire qualified applicants who test positive for cannabis in a pre-employment drug screen, with some exceptions 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 new law does not preempt state or federal laws that require applicants to be tested for controlled substances, including under U.S. Department of Transportation regulations, and does not restrict in situations where applicants must be tested as a condition of employment in order to receive federal funding or federal-licensing related benefits, or as required by federal contract. Employers should be careful, however, because simply having a contract with the federal government is not a "requirement" to drug test employees.

What Remains Untouched by This Law?

Significantly, the law does not impact employers' drug testing programs in other ways. Employers can still:

• Base hiring decisions on the results of tests for drugs other than cannabis.
• Maintain a drug- and alcohol-free workplace (including obligations required by federal law or regulation).
• Test for controlled substances and alcohol during employment. For example, employers may still test for cannabis after a workplace accident, on reasonable suspicion that an employee is under any influence or as part of a random drug testing policy.

Takeaways for Employers

In the face of this new law, prior to January DWT recommends employers:

1. Review their Alcohol and Drug Use policies to ensure compliance with the new law (and other similar laws enacted in other jurisdictions).
2. Cease pre-employment drug testing for cannabis use unless covered by one of the law's exceptions.
3. Evaluate whether they have any jobs that are "safety-sensitive," which will require updated job postings to identify the safety-sensitive nature of the position and the pre-employment drug testing of cannabis requirement.

As always, Davis Wright Tremaine employment lawyers are prepared to provide assistance.