Medical marijuana in Washington was legalized in 1998. It was not until 2012 that Washington legalized recreational use of marijuana and allowed recreational marijuana sales. Along with Colorado, Washington was the first U.S. state to legalize recreational marijuana.
New Washington Law on Marijuana Drug Testing
Effective January 1, 2024, employers in Washington will be limited regarding pre-employment drug testing for marijuana. Washington employers will be prohibited from discriminating in initial hiring decisions based on job applicants’ lawful, off-the-job use of marijuana or test results indicating the presence of nonpsychoactive cannabis. Washington’s new law, Senate Bill 5123, signed by Governor Jay Inslee on May 9, 2023, takes effect on January 1, 2024.
This new law basically protects job applicants from adverse action based on use of marijuana on their own time for example on the weekends. Traditional urine and hair drug testing cannot differentiate between the psychoactive and non-psychoactive components of marijuana. Test results could show marijuana use going back as far as 90 days.
There are exceptions to this new law:
- It does not apply to testing of existing employees including but not limited to random tests, post-accident tests, fit for duty tests, reasonable suspicion tests, return to duty tests and follow up tests.
- United States Department of Transportation (DOT) required drug testing will not change. Pre-employment drug testing with urine for marijuana and other illicit drugs is required for all applicants prior to entering into a DOT covered safety sensitive position.
- Positions exempt and pre-employment marijuana testing allowed:
- first responders, including law enforcement, fire departments, and 911 dispatchers
- as corrections officers who are responsible for the safety and security of others
- positions in airline and aerospace industries
- any jobs where “a substantial risk of death” could result from an employee’s recent marijuana use, these positions must be identified by the employer
- when testing is required based on receiving federal funding or federal licensing–related benefits, or as required by a federal contract
Can Washington Employers Continue to Test for Marijuana?
Yes, as previously stated, this new law affects pre-employment testing of applicants only. The new law does not make it unlawful to test for marijuana. Pre-employment marijuana testing is allowed when the testing is not screening for inactive marijuana use detecting non-psychoactive cannabis metabolites. Hair and urine testing will detect non-psychoactive marijuana metabolites so hair and urine should not be used for pre-employment marijuana testing.
The exceptions listed above should also be noted for in these cases a Washington employer can continue to test applicants for marijuana with urine, hair or oral fluid.
The section below will discuss testing where the non-psychoactive cannabis metabolites are not detected.
What are my Options as an Employer in Washington?
Company drug free workplace policies and drug testing policies should be reviewed and updated. Any changes should be reflected. There must be a discussion and decisions regarding pre-employment drug testing for marijuana.
Regarding testing, one option for employers is to continue urine or hair testing and drop pre-employment testing for marijuana. This could lead to safety and/or liability issues.
Another option is to switch the pre-employment testing protocol to oral fluid specimen drug testing. Employers can self-administer oral fluid collections and send the specimens to a laboratory for testing. This lowers the cost as compared to the traditional urine collection at a clinic.
The non-psychoactive marijuana metabolites which do not indicate recent use will not be detected with oral fluid. The oral fluid drug test is detecting the parent drug and indicating recent use.
California has a similar law but it affects not only applicants but existing employee also.
Revising your drug free workplace policies and changing drug testing protocols can be a complex process. Joe Reilly, President of National Drug Screening can be of assistance with this process. Call or e-mail Joe at 321-622-2020 or firstname.lastname@example.org
Check our out white paper on creating your own Drug & Alcohol Screening Policy