Although Washington decriminalized recreational use of cannabis in 2012, employers in Washington have been free to deny employment on the basis of any evidence of cannabis use, including pre-hire drug testing, and even if cannabis use was for medicinal purposes.
But beginning January 1, 2024, that will no longer be the case for most employers and most job positions.
Washington has enacted a new statute that will greatly limit employers’ abilities to decline to hire an applicant with past cannabis use. The legislature was concerned in particular that standard drug tests screened for nonpsychoactive cannabis metabolites which can be present up to 30 days after cannabis use, and in the legislature’s view such markers “have no correlation to an applicant's future job performance.”
Consequently, beginning January 1, 2024, in most situations it will be unlawful for an employer to refuse to hire a Washington applicant because of (1) the applicant’s prior off-the-job/away from work use of cannabis (regardless of how an employer may have found out about it), or (2) a pre-hire drug screening test that identifies nonpsychoactive cannabis metabolites.
There are some important limitations/exceptions on these new restrictions. For example, they apply only to hiring. They do not apply to post-accident tests, reasonable suspicion tests, or other tests during employment.
Additionally, these new provisions do not apply to:
- pre-hire drug test that does not screen for nonpsychoactive cannabis metabolites;
- positions or workplaces where an employer is obligated under federal law to maintain a drug-free workplace or meet other federal requirements, or the position requires a federal government background investigation or security clearance;
- safety sensitive positions for which impairment while working presents a substantial risk of death (provided that the position was identified as a safety sensitive position before the applicant applied);
- law enforcement, fire department, first responder, or corrections officer positions; or
- positions in the airline or aerospace industries.
Importantly, the new statute also does not apply when a state or federal law requires an applicant to be tested for controlled substances. This includes laws requiring that applicants be tested, and how they are tested, as:
(a) a condition of employment,
(b) a condition of receiving federal funding or licensing-related benefits, or
(c) required by a federal contract.
Key Takeaway for Employers
Employers who require new hires to submit to drug testing as a condition of employment, will want to update their practices to comply with the new rules in Washington as of January 1, 2024, and either do not test for cannabis, or ensure that their testing center does not transmit results to them if what the test screens for is non psychoactive metabolites.
Likewise, employers should make sure that those responsible for hiring and onboarding are aware of these new limitations. If they somehow learn about an applicant’s prior off-the-job cannabis use even without a pre-hire drug test, it cannot be used as a factor in any hiring decision regarding that applicant.
Finally, employers need to make sure that they have identified and designated all safety sensitive positions with a substantial risk of death if impaired while working if the employer wants to use pre-hire testing of cannabis in the hiring decision for those positions.
As always, our team at Miller Nash is available to answer questions.
The legal issues impacting this topic are and will continue to be ever-changing (Employment Law in Motion!), and since publication of this blog post, new or additional information not referenced in this blog post may be available.
This article is provided for informational purposes only—it does not constitute legal advice and does not create an attorney-client relationship between the firm and the reader. Readers should consult legal counsel before taking action relating to the subject matter of this article.
