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State legislators in Washington passed a law that makes it illegal for employers to discriminate against a person based on their off-duty marijuana usage.

Preventing Discrimination Against Cannabis Users

Legislators in Washington passed Senate Bill 5123 (SB5123), which is also known as Use Of Cannabis—Employment Discrimination. It begins by recognizing that recreational cannabis use was legalized in 2012 and created “a disconnect between prospective employees' legal activities and employers' hiring practices.”

The bill explains that non-psychoactive cannabis metabolites remain in the user’s system for up to 30 days but do not affect the individual’s job performance. It notes that the legislature intends to prevent employers from restricting job opportunities to applicants who legally use marijuana.

About The Bill

SB5123 says it is unlawful for employers to discriminate against job applicants based on:

• The person's use of cannabis outside of the job and away from the workplace; or
• An employer-required drug screening that found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

These rules are specifically for pre-employment drug screening. They do not apply to other drug tests, such as those that are conducted because an employee is suspected of being impaired while on the job or for post-accident testing.

The bill further states that it does not prohibit employers from considering scientifically valid drug tests that do not screen for non-psychoactive cannabis metabolites during the initial hiring phase. It also confirms that employers have the right to maintain a drug and alcohol-free workplace.

SB5123 goes into effect on January 1, 2024.

Exceptions

The pre-employment drug screening law does not apply to applicants who are seeking positions:

• Which require a federal government background check or security clearance.
• As firefighters, first responders, corrections officers or positions that require a person to be directly responsible for the custody, safety, and security of persons confined in those facilities.
• In the airline or aerospace industries.
• Are safety-sensitive to the point that working while impaired could present a substantial risk of death.
• Have federal regulations which require applicants to be tested for controlled substances.

What Employers Should Know

Employers in Washington should know that as of January 1, 2024, with some exceptions, they may not make hiring decisions or discriminate against applicants based on the results of a drug test that shows the person has non-psychoactive cannabis metabolites in their system. They may prohibit the use of drug and alcohol at the workplace and consider actions against an employee who is impaired while on duty.

Running Background Checks

Laws like SB5123 are intended to help bolster the rights of job seekers and prevent employment discrimination. There are hundreds of federal, state and local laws that are meant to help people find jobs and gain second chances. Background checks are an essential part of the hiring process and employers can easily customize their screening packages to accommodate relevant laws.

If your organization needs employment background checks, please contact us. Our highly experienced team can help you build screening packages that suit your particular needs, comply with second chance and other laws and help you build strong teams. We are available to assist you Monday through Friday from 5am to 6pm PT.