United States: Washington Legislature to Employers: Don’t Fear the Reefer

Regardless of your views on marijuana use, it will soon be illegal for Washington employers to reject most job applicants based on their off-duty cannabis use. Beginning January 1, 2024, most Washington employers may not reject a job applicant simply because they use marijuana outside of work and away from the workplace. The same is true for job applicants whose pre-employment drug tests show recent use of marijuana. In line with Washington state’s tolerant view of recreational and medicinal pot use, employers are expected to not fear the reefer in hiring.

Don’t Turn Away the Stoners Simply Because They’re Stoners

That summarizes the most recent decree of our state’s legislature and our Governor, who signed Senate Bill 5123 into law on May 9, 2023. Starting next year, if an employer learns that a job applicant enjoys marijuana outside of work – whether that information is gleaned from the interview, a social media search, or from a referral source – the employer may not reject the applicant for the job on that basis alone. In the same vein, employers may not use pre-employment drug test results that reveal non-psychoactive cannabis metabolites in the job applicant’s hair, blood, urine, or other bodily fluids to disqualify a job applicant working in Washington.

The New Law Does Not Prohibit Testing and Rejection for Use of Other Drugs

The new law does not prohibit Washington employers from using pre-employment drug tests to screen applicants based on the use of other recreational drugs besides non-psychoactive cannabis metabolites. Thus, Washington employers may continue to reject applicants based on a job applicant’s use of cocaine, methamphetamine, ecstasy, etc.– just not cannabis.

The new law applies only to pre-employment testing; Washington employers may still maintain a workplace free of alcohol and drugs – including marijuana. Washington employers may test their current employees for drugs based on (1) reasonable suspicion (that is, specific and objective grounds) that an employee’s work performance is impaired due to being under the influence or (2) following an on-the-job incident.

Certain Exceptions Apply

The new law does not apply to applicants for certain narrowly defined positions, including positions with law enforcement agencies, airline or aerospace industries, fire departments and fire protection districts, first responders, and corrections officers. However, the Washington legislature rejected the broad “safety sensitive” designation used by many employers as justification for pre-employment drug testing, setting the bar much higher by permitting pre-employment testing for cannabis only if “impairment while working presents a substantial risk of death” and the employer notifies the candidates before they apply.

Likewise, the law does not preempt federal or state laws that require a federal government background investigation or security clearance. Similarly, the new law does not override state or federal laws that mandate testing for controlled substances (such as marijuana), including laws that require such testing as a condition of (1) employment (commercial drivers and airline pilots, for example), (2) the receipt of federal funds, or (3) a federal contract.

The Takeaways

Based on this new law, by January 1, 2024, unless your organization falls into one of the narrow exceptions, Washington employers should:

• Update your drug tests. Stop using pre-employment drug tests that screen for non-psychoactive cannabis metabolites;
  
• Update your applications and handbook. Update application materials to track the new law. Modify your policy if your handbook currently states that you search for non-psychoactive cannabis metabolites during pre-employment testing; and
  
• Stay vigilant for on-duty use or impairment. Remain empowered to take adverse action against employees who are under the influence at work or use cannabis while at work without a valid and pre-approved medical reason.

The bottom line: lawful, off-duty cannabis use is not a viable reason to reject a candidate for most jobs. If you have questions or believe a job for which you are hiring is exempt from this new law, contact Lane Powell’s labor and employment attorneys for personalized and detailed guidance.

Lane Powell’s team of labor and employment attorneys is here to help your organization comply with state and local laws, and develop and implement the strategy that supports your business and your employees. For more information, contact Joe Ridgeway, or visit our firm’s Labor, Employment, and Benefits page. Keep up to date by subscribing to Lane Powell’s Legal Updates.