Washington - Considerations for Marijuana in the Workplace

Last Update on June 16, 2023

Medical
Marijuana Law:

Recreational
Marijuana Law:

Employer Concerns – Significant to Review

Similar to California, a new law takes effect January 1, 2024. Employers will be prohibited from making hiring decisions based on the off-duty use of cannabis or a positive pre-employment drug test result that includes nonpsychoactive cannabis metabolites. There are some exceptions.
Eliminating marijuana from pre-employment Non-DOT testing panels is recommended as current testing methodologies include testing for nonpsychoactive cannabis metabolites.
Employers still may and should test for cannabis for random selections, post-accident, reasonable suspicion, follow-up or return-to-duty testing.
Employers may establish drug-free workplace policies.
Nothing in the law requires employer accommodation of workplace, on-site medical marijuana use.
Affirmed in a case decision, an employer acting per his drug policy post-accident tested an employee who is subject to collective bargaining and the employer was found not to have to accommodate regardless of the medical marijuana status of the employee.

Testing

Employers may establish drug-free workplace policies.
Eliminating marijuana from Non-DOT testing panels is recommended for pre-employment testing as current testing methodologies include testing for nonpsychoactive cannabis metabolites.
Employers still may and should test for cannabis for random selections, post-accident, reasonable suspicion, follow-up or return-to-duty testing.
DOT testing programs will continue to require marijuans testing.

Hiring/Termination

Caution, new law effective 01/01/2024 prohibits discriminating against a person in hiring if the discrimination is based upon the following:

The person’s use of cannabis off the job and away from the workplace; or
An employer-required pre-employment drug screening test that identifies nonpsychoactive cannabis metabolites in the person’s hair, blood, urine, or other bodily fluids.

Discipline

Employers may establish drug-free workplace policies.
Use caution with discipline for a marijuans positive

Use/Possession

Smoking is permitted except where smoking tobacco is prohibited.

No public consumption or “in view of public.”

Consumption for either driver or passenger is prohibited in a motor vehicle. Consumers can carry in their vehicles, but it must be in a sealed container or in the trunk. But it is illegal to transport any open package or container of marijuana or marijuana-infused products.

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)

Impaired driving for marijuana is established at 5 ng/ml in blood.

State law requires U.S. Department of Transportation mandated employers to report certain information to the state Department of Transportation. This could affect an employer’s drug testing protocols.

Apply the Checklist of Impacting Issues to Research provided by NDS for additional state laws and issues that can relate to and/or impact your operations regarding employee use of marijuana.

Sources

(e.g., Bill Number, Authority)

Revised Code of Washington 69.51a – Medical marijuana
Initiative 502 – Recreational marijuana
Roe v TeleTech Customer Care Management (2009) Washington Court of Appeals, No. 38531-7-II – Case decision
Swaw v Safeway (2015) Washington West District Court, No. 2:2015cv00939 – Case decision
Revised Code of Washington 46.25.123 – Transportation related
Revised Code of Washington 50-20-060 to 066 – Unemployment related

Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

Drug Testing in Washington

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Drug Testing Laws for Washington

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