Washington Law Prohibits Discrimination of Job Applicants’ Off-Duty Marijuana Use

Effective January 1, 2024, a new Washington law, ESSB 5123, prohibits employers from making hiring decision based on pre-employment testing of off-duty cannabis use (i.e., results showing nonpsychoactive cannabis metabolites). Employers may make hiring decisions based on scientifically valid drug tests that do not screen for nonpsychoactive cannabis metabolites, as well as any other type of controlled substance and alcohol.

By enacting this law, Washington lawmakers want to protect job applicants from being denied job opportunities for legal off-duty use of marijuana, which has been legal in Washington since 2012, that does not correlate to job performance. Nonpyschoactive cannabis metabolites do not get people high, or intoxication, but may remain in a person’s body 30 days after use of marijuana.

Specifically, ESSB 5123 makes it illegal to deny a job applicant because of the use of cannabis off the job and away from the workplace or based on a drug test that finds the person has nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

There is currently not a readily available effective scientifically valid drug test on the market for marijuana that does not test for nonpsychoactive cannabis metabolites. Until a suitable test is made available, Washington employers will not be able to test for marijuana in pre-employment testing. Given a number of states, including California, are prohibiting this type of marijuana testing, the hope is that a suitable scientifically valid drug test will be available soon.

Employers are still able to administer drug tests that test for nonpsychoactive cannabis metabolites for current employees through post-accident, random, and reasonable suspicion testing. Employers are also still allowed to maintain drug and alcohol-free workplace policies and obligations required under federal law, required to receive federal funding or federal licensing-related benefits, or required by a federal contract.

This law does not apply to applicants in the following positions:

• Positions that require federal government background investigations or security clearance;
• First responder or law enforcement positions;
• Airline or Aerospace industry positions; or
• Safety sensitive positions for which impairment while working causes a substantial risk of death.

Safety sensitive positions need to be identified before a job applicant applies for employment.

Washington employers, including Oregon based employers with positions assigned to work in Washington, should review and update their drug and alcohol testing policies and procedures to ensure compliance with this new law. Employers should also contact their drug testing centers to ensure future pre-employment testing will be conducted in compliance with this law.

Employers also need to review their positions to determine which qualify as “safety sensitive” positions under the law and include that information in job descriptions and job postings.

Information on Washington Law, ESSB 5123, can be found at the following websites:

• https://lawfilesext.leg.wa.gov/biennium/2023-24/Pdf/Bills/Session%20Laws/Senate/5123-S.SL.pdf?q=20230526133248)
• https://app.leg.wa.gov/RCW/default.aspx?cite=49.44.240

UEA attorneys are available to address your questions and concerns regarding compliance with this new Washington law. We can also assist you with updating policies and procedures to ensure compliance.