Many new regulations have taken effect with the start of the new year. For Washington employers, this includes a new ban on pre-employment marijuana testing for most new hires. On January 1, a new regulation took effect that prohibits employers from taking adverse action against new hires based on a positive test for marijuana.

Washington Governor Jay Inslee signed the new legislation on May 9, 2023. The legislation (SB 5123) took effect on January 1, 2024. SB 5123 states, “The legislature finds that the legalization of recreational cannabis in Washington state in 2012 created a disconnect between prospective employees’ legal activities and employers’ hiring practices.”

Under SB 5123, Washington law has changed to state:

1. “It is unlawful for an employer to discriminate against a person in the initial hiring for employment if [basing] the discrimination upon:
2. The person’s use of cannabis off the job and away from the workplace or
3. An employer-required drug screening test has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”

The law does not prohibit employers from “basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites.” However, it does not specify what kind of testing this may include. Tests on the market cannot distinguish between psychoactive metabolites, which indicate intoxication, and non-psychoactive.

As a result, it is effectively impossible to perform pre-employment testing for marijuana usage. However, the law does not prohibit employers from testing outside of this context. This permission means employers may test due to a workplace accident or when suspecting an employee of impairment.

The law does not preempt existing state law or federal drug testing requirements. In addition, it does not prevent testing for law enforcement officers, first responders, corrections officers, fire departments, or positions designated as safety-sensitive. These safety-sensitive positions include those “for which impairment while working presents a substantial risk of death.”

Employers may continue performing pre-employment testing for a wide range of substances. This range also includes cannabis as long as the employer does not see the cannabis results. Employers who have not done so must update their hiring policies to ensure compliance with these new regulations. They should also consider reviewing their policies for hiring those with prior cannabis-related convictions. A great way to get started is by working with an experienced screening provider.

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Employers in Washington should prepare for changes in marijuana regulations, which take effect on January 1, 2024. As of the new year, Senate Bill 5123 (SB 5123) will prohibit employers from refusing to hire applicants due to the legal use of marijuana outside of work. More specifically, they cannot make hiring decisions based on pre-employment drug tests that screen non-psychoactive cannabis metabolites. 

Tests that screen for non-psychoactive cannabis metabolites do not indicate if someone is currently under the influence of marijuana. These metabolites stay in a person’s system after metabolizing the active chemical tetrahydrocannabinol (THC). As such, tests could detect non-psychoactive cannabis metabolites metabolized weeks ago.

How SB 5123 Works

SB 5123 intends to stop employers from restricting job opportunities due to cannabis use when off the job. According to the law, “it is unlawful for an employer to discriminate against a person in the initial hiring for employment if the discrimination is based upon:

• The person’s use of cannabis off the job and away from the workplace; or

• 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.”

However, SB 5123 does not ban employers from making hiring decisions based on drug tests that do not screen for non-psychoactive cannabis metabolites. It also allows employers to continue maintaining a drug-free workplace. The law does not affect an employer’s rights or obligations under federal laws or regulations. Finally, SB 5123 allows employers to conduct drug tests on employees involved in a workplace accident or under suspicion of working while under the influence.

Exceptions to the Bill

All employers in Washington must comply with SB 5123. However, the new regulation does offer a carveout for qualifying positions. Examples include:

• A position requiring a federal government background investigation or security clearance
• A position with a general authority in Washington law enforcement agency as defined in RCW 10.93.020;24
• A position with a fire department, fire protection district, or regional fire protection service authority
• A position as a first responder 
• A position as a corrections officer with a jail, detention facility, or the Department of Corrections, including any position directly responsible for the custody, safety, and security of persons confined in those facilities
• A position in the airline or aerospace industries
• A safety-sensitive position for which impairment while working presents a substantial risk of death. The employer must identify safety-sensitive jobs before the applicant applies for employment.

SB 5123 will not preempt state or federal laws concerning drug testing. As such, applicants may undergo testing as a condition of employment due to federal contract requirements. They may also expect it to receive licensing-related benefits or federal funding.

January 1, 2024, is not far away, meaning SB 5123 will soon take effect. As such, employers should prepare and review their hiring processes to ensure immediate compliance. One way to act quickly and efficiently is to partner with a trustworthy background screening company.

Keep your business compliant with new laws and regulations with JDP’s reliable background checks. Contact a sales rep today.

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The U.S. Equal Employment Opportunity Commission (EEOC) recently settled a lawsuit against a major online tutoring company. As a result, the company must pay $360,000 due to accusations of discriminating against older applicants. The suit revealed that the company programmed its recruiting software’s algorithm to eliminate applications from women aged 55 or older and men aged 60 or older.

The agency learned about this discrimination when an applicant claimed she received an immediate denial after applying with her actual birth date. This applicant applied with identical information and a different birth date the next day. According to the suit, she received an interview for the second application.

However, the company refuted all allegations during the settlement. It also disputed claims by the EEOC that its tutors are employees affected by the Age Discrimination in Employment Act of 1967 (ADEA). Instead, the company maintained its stance that all tutors are independent contractors.

The settlement agreement stipulates that the tutoring company must accomplish the following:

• Provide public notice about the settlement
• Create new anti-discrimination policies and complaint handling
• Provide appropriate training for managers
• Report to the EEOC, and
• Supply monetary relief to those impacted through the $365,000 payout.

This case further fueled cautions issued by the EEOC. For example, the agency warned that AI and algorithmic employment screening tools may perpetuate ageism, sexism, racism, and other biases in hiring. As proven in this suit, it can and does happen. The lawsuit alleged that these screening tools could cause employers to violate anti-discrimination rules. 

The EEOC has warned employers that AI tools could screen out applicants with disabilities based on inaccessibility. They advise companies using these tools to frequently self-evaluate to determine if their screening programs could result in discriminatory hiring practices. Furthermore, employers not involved in the tools’ development may find themselves liable for any discrimination from the tools’ use.

Any employer that utilizes AI or algorithmic screening tools should do their due diligence. For example, they should ask vendors to supply data on whether the tools screen out applicants from protected groups at higher rates. They should also check the accuracy of the information and whether the screening tool still perpetuates bias. The EEOC could hold the employer responsible for the results in either scenario.

Employers should stay abreast of the latest concerns in algorithm-based hiring tools to comply with EEOC’s recommendations. One way to ensure compliance is by partnering with a background check provider. The right partner can help businesses stay mindful of anti-discrimination rulings and avoid mistakes. While implementing AI or algorithmic screening programs may save time for HR, it is no substitute for a well-informed and helpful background screening partner.

Keep your business up to date on new laws and regulations with JDP’s free news resources. Contact a sales rep today.

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