Applicants for employment in Washington gained new protections on Monday as a new law barring discrimination based on a worker’s off-duty cannabis use went into effect throughout the state. The legislation, Senate Bill 5123, was signed into law by Democratic Governor Jay Inslee in May 2023 after being passed by state lawmakers three weeks earlier.
Under the new law, employers in Washington are barred from taking action against newly hired workers for using cannabis off the job and away from the workplace. The prohibition also applies to new employees who have failed an employer-required drug screening for non-psychoactive cannabis metabolites in their hair, blood, urine or other bodily fluids.
Pre-employment drug screenings for cannabis will still be allowed for workers applying for certain safety-sensitive positions. The legislation also includes exceptions for law enforcement officers, firefighters and other first responders, as well as candidates for positions in certain industries such as airlines and aerospace. Jobs that require a federal background check or security clearance are also exempt from the law.
Drug Tests Still Allowed for Current Workers
The new law also does not affect workplace policies that require current workers to undergo drug tests for cannabis use while off the job. As the bill was being considered by the Washington state legislature last year, Democratic Senator Karen Keiser, the bill’s sponsor, noted that the legislation does not apply to employees after the hiring process is completed.
“If your employer wants to test you every week after you’re hired, they’re still able to do that,” Keiser said in a statement quoted by the Seattle Times. “This is simply opening the front door of getting into a job. Because too many people who see that they have to take a drug test to even apply, don’t even apply.”
Supporters of the legislation note that most currently available drug screenings for cannabis do not detect or measure impairment from marijuana use. Instead, they rely on detecting metabolites present in the system after a person uses weed. Burl Bryson, the executive director of The Cannabis Alliance, told lawmakers at a public hearing in January that potential job candidates can consume cannabis legally “and still test positive for weeks later.”
“If the same approach were applied to alcohol, employers would refuse employment to anyone who enjoyed a beer or glass of wine on the weekend,” Bryson said.
“It simply doesn’t make sense to base an employment decision on that kind of unreliable outcome and test,” Keiser told her colleagues on the Senate floor before they voted in favor of the legislation.
Paul Armentano, the deputy director of the National Organization for the Reform of Marijuana Laws (NORML), said that laws for workplace drug screenings must evolve as cannabis is legalized in states across the nation.
“Urine screening for off-the-job cannabis consumption has never been an evidence-based policy,” he said in a statement from the cannabis policy reform advocacy group in May. “Rather, this discriminatory practice is a holdover from the zeitgeist of the 1980s’ war on drugs. But times have changed; attitudes have changed, and in many places, the marijuana laws have changed. It is time for workplace policies to adapt to this new reality and to cease punishing employees for activities they engage in during their off-hours that pose no workplace safety threat.”
“Those who consume alcohol legally and responsibly while away from their jobs do not suffer sanctions from their employers unless their work performance is adversely impacted,” Armentano added. “Those who legally consume cannabis should be held to a similar standard.”
NORML noted that numerous studies have shown that workers who use cannabis while off the job do not pose an increased safety risk compared with employees who do not consume marijuana. In a detailed review of the relevant data, the US National Academy of Sciences found that “There is no evidence to support a statistical association between cannabis use and occupational accidents or injuries.”
Washington is not the only state where laws protecting workers who use cannabis while off the job are going into effect with the dawn of the new year. In California, a new law to prohibit employers from taking action against employees who test positive for cannabis in a hair or urine test also went into effect on Monday.
Nevada and Michigan have also recently adopted legislation to protect new hires from pre-employment discrimination based on their use of cannabis. Other jurisdictions including Connecticut, the District of Columbia, Montana, Minnesota, New Jersey, New York and Rhode Island have expanded policies to limit cannabis testing for both new hires and existing employees.