December 5, 2023
Washington employers should prepare their drug testing policies for the start of 2024. At the beginning of the year, Senate Bill 5123 (SB 5123) will prohibit them from using off-duty cannabis use as a reason to reject job applications. Furthermore, employers cannot use pre-employment drug testing to screen applicants for non-psychoactive cannabis metabolites.
SB 5123 Details
However, SB 5123 will not prevent employers from maintaining a drug-free workplace and screening for other substances. The bill focuses on marijuana use only. As such, employers cannot discriminate against cannabis use that takes place outside of working hours and locations. This ban addressed the issue of drug tests detecting non-psychoactive cannabis metabolites. This decision is because the metabolites often remain in one’s body for weeks after metabolizing tetrahydrocannabinol (THC). THC is a principal psychoactive component of cannabis.
SB 5123 will place marijuana usage on the same footing as alcohol. As such, testing for marijuana must be: “scientifically valid drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites.” The law does not explain what exactly is meant by “non-psychoactive cannabis metabolites.” Furthermore, no test can currently distinguish between psychoactive and non-psychoactive components.
Employers Dos and Don’ts
Most employers cannot perform pre-employment testing for cannabis usage beginning January 1, 2024. However, SB 5123 has allowed exceptions for several circumstances. For example, employers may continue testing for an assortment of substances, including cannabis, if they do not provide cannabis-related results. Other exceptions include the following:
- Positions that require a federal background investigation or security clearance,
- Various law enforcement and fire department positions,
- First responder and corrections officer positions,
- Jobs within the airline and aerospace industries, and
- A “safety sensitive position for which impairment while working presents a substantial risk of death.”
SB 5123 also allows employers to continue testing applicants when required by state or federal law. Examples of such requirements include it as a condition of employment for federal funding, contracts, or licensing-related benefits. Employers may also require cannabis testing after accidents. However, they must have reason to believe that an employee is under the influence of drugs or alcohol in the workplace.
Bill May Come Soon
These changes will go into effect soon. As a result, Washington employers should prepare their policies and procedures accordingly. Preparations may mean changing or eliminating pre-employment cannabis testing entirely. Notably, employers should define what positions are considered “safety-sensitive.” Employers should also consider reviewing how they address prior marijuana-related offenses to ensure they treat all applicants fairly.