Can an Employer Consider an Applicant’s Off-Duty Use of Marijuana in Making a Hiring Decision? After January 1, 2024, Not in Washington…

Can an Employer Consider an Applicant’s Off-Duty Use of Marijuana in Making a Hiring Decision? After January 1, 2024, Not in Washington…

A decade after recreational use of cannabis was legalized in Washington, the state recently enacted new restrictions on employers’ ability to consider off-duty use of marijuana in hiring.

On May 9, 2023, Governor Inslee signed Senate Bill 5123 into law, which bars most employers’ from making hiring decisions based on off-the-job cannabis use or most pre-employment cannabis testing.  Specifically, the new law makes it unlawful for an employer to discriminate against a person in the initial hiring for employment if the discrimination is based upon either: (a) the person’s use of cannabis off the job and away from the workplace; or (b) an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in the hair, urine, or other bodily fluids.

The new law was based upon the legislature’s perception that the legalization of recreational cannabis “created a disconnect between prospective employees’ legal activities and employers’ hiring practices,” and an intent “to prevent restricting job opportunities based on an applicant’s past use of cannabis.”  The legislature cited to the disparate treatment of off-duty use of alcohol and cannabis, despite both being “legally allowed controlled substances.”  The legislature noted that this disconnect resulted from common methods of cannabis testing, which identify the presence of nonpsychoactive metabolites from past cannabis use that stay in the body for substantial periods after that use.

The new law does not prohibit an employer from considering the prior use of drugs other than cannabis,  nor, in theory, tests detecting only psychoactive components of cannabis.  Such “psychoactive cannabis” tests are designed to only detect whether the applicant is impaired at the time of the test.  Importantly, the new law does not apply outside of preemployment testing, and does not impact other types of testing, such as post-accident testing and for-cause testing.

The new law also includes a host of exceptions aimed both at practical concerns and the reality that cannabis remains illegal under federal law.   Notably, it would not apply to applicants for positions: (1) requiring a federal government background investigation or security clearance; (2) in law enforcement, corrections, fire protection, or positions classified as “first responders”; (3) in the airline or aerospace industries; and (4) in safety sensitive positions.   Positions classified as “safety sensitive” must be documented in advance of the application.

The law also does not preempt state or federal laws requiring an applicant to be tested for controlled substances, including laws requiring applicants to be tested, or the way they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or as required by a federal contract.

Compliance with the new law does not necessarily require employers to abandon standard pre-employment panel drug tests, which may include testing for cannabis metabolites, “as long as the cannabis results are not provided to the employer.”  If the employer chooses to keep using such standard panels, it will want to ensure that not only that it is neither receiving nor able to access such results for Washington employees.  Doing so will not only ensure compliance with the express text of the new law, but also serves to limit subsequent litigation risk.

The recently enacted provisions take effect on January 1, 2024, giving employers a short window to review and update their drug and alcohol testing policies, and ensure outside vendors have a plan in place for timely compliance.

Michael Chait