SB 5123 to Prevent Discrimination Against Off-Duty Marijuana Use
November 29, 2023
Employers in Washington should prepare for changes in marijuana regulations, which take effect on January 1, 2024. As of the new year, Senate Bill 5123 (SB 5123) will prohibit employers from refusing to hire applicants due to the legal use of marijuana outside of work. More specifically, they cannot make hiring decisions based on pre-employment drug tests that screen non-psychoactive cannabis metabolites.
Tests that screen for non-psychoactive cannabis metabolites do not indicate if someone is currently under the influence of marijuana. These metabolites stay in a person’s system after metabolizing the active chemical tetrahydrocannabinol (THC). As such, tests could detect non-psychoactive cannabis metabolites metabolized weeks ago.
How SB 5123 Works
SB 5123 intends to stop employers from restricting job opportunities due to cannabis use when off the job. According to the law, “it is unlawful for an employer to discriminate against a person in the initial hiring for employment if the discrimination is based upon:
- The person’s use of cannabis off the job and away from the workplace; or
- An employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”
However, SB 5123 does not ban employers from making hiring decisions based on drug tests that do not screen for non-psychoactive cannabis metabolites. It also allows employers to continue maintaining a drug-free workplace. The law does not affect an employer’s rights or obligations under federal laws or regulations. Finally, SB 5123 allows employers to conduct drug tests on employees involved in a workplace accident or under suspicion of working while under the influence.
Exceptions to the Bill
All employers in Washington must comply with SB 5123. However, the new regulation does offer a carveout for qualifying positions. Examples include:
- A position requiring a federal government background investigation or security clearance
- A position with a general authority in Washington law enforcement agency as defined in RCW 10.93.020;24
- A position with a fire department, fire protection district, or regional fire protection service authority
- A position as a first responder
- A position as a 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
- A position in the airline or aerospace industries
- A safety-sensitive position for which impairment while working presents a substantial risk of death. The employer must identify safety-sensitive jobs before the applicant applies for employment.
SB 5123 will not preempt state or federal laws concerning drug testing. As such, applicants may undergo testing as a condition of employment due to federal contract requirements. They may also expect it to receive licensing-related benefits or federal funding.
January 1, 2024, is not far away, meaning SB 5123 will soon take effect. As such, employers should prepare and review their hiring processes to ensure immediate compliance. One way to act quickly and efficiently is to partner with a trustworthy background screening company.
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