Washington - WA Employers May Not Rely on Off-Duty Use of Marijuana in Hiring Decisions

Washington has enacted legislation (Senate Bill 5123), which prohibits employers from making a hiring decision based on an individual’s off-duty use of cannabis or certain positive pre-employment drug test results. Senate Bill 5123 takes effect on Jan. 1, 2024.

The details

Employment drug tests can generally detect nonpsychoactive cannabis metabolites for up to 30 days after use. These test results may impact an employer’s decision to hire an individual.

Senate Bill 5123 further protects an individual’s use of recreational marijuana by prohibiting an employer from making a hiring decision based on an individual’s:

• Off-duty and away from the workplace use of cannabis; or
• Positive pre-employment drug test results that show that an applicant has nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

Note: Current drug tests do not distinguish between psychoactive and nonpsychoactive metabolites. Under the law, Washington employers will not be able to test for marijuana on a pre-employment drug test if such a test is not developed by Jan. 1, 2024.

Exceptions

Senate Bill 5123 does not preempt a state or federal law that requires an applicant to test for drug use, such as testing:

• Related to the receipt of federal funding or federal licensing-related benefits; or
• Required by a federal contract.

The law also does not apply to:

• A safety-sensitive role, where impairment while working presents a substantial risk of death. An employer must identify these roles prior to a candidate’s application for employment;
• First responders (such as 911 dispatchers);
• Corrections officer positions;
• Certain law enforcement or fire department positions; or
• Positions:

Permissible Tests

Under the law, an employer may:

• Conduct drug tests for marijuana as part of lawful tests unrelated to hiring, such as post-accident and reasonable suspicion tests;
• Test for other drugs, such as alcohol; or
• Base initial hiring decisions on scientifically valid drug screening that is conducted through methods that do not screen for nonpsychoactive cannabis metabolites.
• Require an applicant to be tested for a spectrum of controlled substances (including cannabis), as long as the cannabis results are not provided to the employer.

Note: Employers may maintain a drug and alcohol-free workplace, and the law does not affect any other rights or obligations of an employer under federal law or regulation.

Next steps

Washington employers should review their drug and alcohol testing policies to ensure compliance with Senate Bill 5123 by Jan. 1, 2024.

Please contact your ADP Service Representative with any questions.