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May 18, 2023

WASHINGTON: New bill limits most pre-employment cannabis tests

Drug and AlcoholHiring 

Governor Jay Inslee has signed ESSB 5123, which will prohibit Washington employers from requiring pre-employment testing for non-psychoactive cannabis (marijuana) metabolites of applicants who lawfully consume cannabis away from work, except under limited circumstances, effective January 1, 2024. It creates a new protected group and makes it unlawful for employers to discriminate against these lawful cannabis consumers in the hiring process, unless one of the limited exceptions is present. However, the bill doesn’t affect any employer’s rights or obligations to maintain a drug-free and alcohol-free workplace, comply with federal laws or regulations, or test current employees for drugs (including cannabis). The bill also specifies that if a state or federal law requires an applicant to be tested for controlled substances, that law takes priority over the new bill.

Employers may still test job candidates for non-psychoactive cannabis metabolites when they are seeking certain positions in law enforcement or as first responders. In addition, the bill contains three exceptions that may be relevant to manufacturers:

  • A position requiring a federal government background investigation or security clearance;
  • A position in the airline or aerospace industries; or
  • A safety sensitive position for which impairment while working presents a substantial risk of death. Such safety sensitive positions must be identified by the employer before the applicant submits an employment application.

Tips: The exception for airline and aerospace industry positions appears to be very broad, but it remains to be seen how it will apply to positions that aren’t covered by Federal Aviation Administration (FAA) drug testing rules. In other industries, if you believe some of your positions may qualify as safety-sensitive under this new law and you want to continue testing applicants for marijuana metabolites, you should review the Job Safety Analysis (JSA) for the job and document exactly why impairment while working in that position presents a substantial risk of death. Once you’ve identified those positions, include that designation and the requirement for pre-employment cannabis testing in the relevant job postings and job descriptions.

If your testing provider isn’t able to eliminate pre-employment cannabis testing for positions that don’t qualify for an exception, the bill authorizes a practical solution: Direct the testing provider not to share the cannabis results with you. We recommend you work with your testing site to develop a process that works best for you. You should also review your drug and alcohol policy to ensure it doesn’t include any language contrary to the new law.

If you have employees represented by a union, you may notify the union of changes in your applicant drug testing policy, but you’re generally not obligated to do so except in limited circumstances such as if you obtain applicants through a union-sponsored hiring hall. If you want to voluntarily change your employee drug testing procedures, of course, you must give the union advance written notice so it has the opportunity to demand to bargain over the change.

We will be updating our Legal Guide, Marijuana in the Workplace with these new requirements. Contact your Vigilant Law Group employment attorney with any questions about how the newly signed legislation may affect your workplace.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.