Washington state will soon provide measures to protect employees from pre-employment drug tests for cannabis in many situations.
On May 9, Gov. Jay Inslee signed Senate Bill 5132 to lay out broad protections for employees who consume cannabis while imposing limitations on employment drug testing for cannabis.
Employers must prepare to comply by January 1, 2024, the bill’s effective date. The bill was sponsored by Sen. Karen Keiser (D-Des Moines) who serves as chair of the Senate Labor & Commerce Committee.
“It is unlawful for an employer to discriminate against a person in the initial hiring for employment if the discrimination is based upon: (a) The person’s use of cannabis off the job and away from the workplace; or (b) 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,” the bill reads.
With i502, Washington legalized adult-use cannabis sales in 2012. During the 2022-2023 legislative session, lawmakers in Washington worked to implement a bill that will bridge the gap between hiring practices and current law.
SB 5132 provides exemptions for jobs that involve federal security clearances or background investigations, in law enforcement, the fire department, first responders, corrections officers, the airline or aerospace industries, or in safety-sensitive positions.
Why Drug Testing for Cannabis Doesn’t Work
The Spokesman-Review reports that cannabis metabolites can be detected long after impairment, lasting up to 30 days or more. But cognitive impairment only lasts from three to 10 hours, according to a 2021 study by the University of Sydney. Those researchers found that drug tests for cannabis are likely an inaccurate way of determining impairment.
“Urine screening for off-the-job cannabis consumption has never been an evidence-based policy,” said NORML Deputy Director Paul Armentano. “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.”
Armentano added, “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. Those who legally consume cannabis should be held to a similar standard.”
Nevada enacted a similar law to ban employers from drug testing for cannabis in 2019. California, Connecticut, Montana, New Jersey, New York, and Rhode Island enacted workplace protections limiting employers’ ability to either test for THC or to sanction employees for their use of cannabis while off the job. At the local level, Atlanta, Baltimore, Philadelphia, and the District of Columbia approved bills to limit employers’ ability to pre-screen job applicants for past cannabis use.
The effects of cannabis wear off within hours. Numerous studies show that employees who consume cannabis off the clock perform no differently than their non-cannabis-consuming peers.
The new law means that employers in Washington must review and revise their drug testing policies to align with the protections provided by SB 5132. They must remove any pre-employment cannabis drug testing requirements that test or report non-psychoactive cannabis metabolites and ensure that policies clearly outline the exemptions for drug testing, such as post-accident or suspicion-based situations.
New York issued similar guidelines. In October 2021, the New York State Department of Labor (DOL) released new guidance regarding legalized recreational marijuana use and the workplace including the new worker protections. The new guidance makes it clear that off-the-clock cannabis use should be tolerated by employers in most situations. It defines mandatory pre-employment drug testing for cannabis as “discrimination.”