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.

Discover the benefits of JDP’s seamless background checks for your business. Contact a sales rep today.

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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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Jobseekers in Washington will soon receive protection from discrimination for recreational marijuana usage. Signed into law on May 9, 2023, Senate Bill 5123 will take effect on January 1, 2024. As such, these protections would prevent employers from rejecting applications for their off-duty marijuana use.

Under this bill, employers cannot reject a job applicant solely due to learning that they used cannabis outside the workplace. Examples provided by the bill include discovering the use through social media, referral, or pre-employment testing. It also detailed specifics on these bans, such as the pre-employment drug tests that reveal marijuana usage. According to the bill, employers cannot reject applicants based on tests that discover non-psychoactive cannabis metabolites in the job applicant’s hair, blood, urine, or other bodily fluids.

However, this new law has exceptions for certain positions. The bill included examples such as law enforcement agencies, airlines, fire departments, corrections, and other first responders. It also provided exemptions for jobs where “impairment while working presents a substantial risk of death.” Employers must notify job seekers of such cases before interested parties apply.

Similarly, it does not protect applicants for positions where a state or federal law requires a federal background check, security clearance, or testing for controlled substances. The bill also specified employment for commercial drivers or airline pilots.

Affected parties should understand that SB 5123 specifically concerns cannabis. As such, employers can continue testing and rejecting applications for using other recreational drugs. It also applies only to pre-employment decision-making. This limitation allows employers to maintain a drug-free workplace, including marijuana. As a result, employers can test current employees for marijuana and other drugs with reasonable suspicions of impairment. They may also test after an on-the-job accident.

Thanks to this new law, recreational marijuana users will have less to fear when applying for work. Recreational cannabis users may experience greater job opportunities thanks to the new law, which takes effect on January 1, 2024, and the state’s existing marijuana expungement law that took effect in 2019. Before SB 5123 takes effect, job seekers should consider performing a self-background check. Self-checks can inform you of errors, allowing you to dispute and correct them before potential employers see them.

Try running a self background check today and give yourself a head start on your next job opportunity.

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