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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