Washington Enacts a New Employee Cannabis Protection Law

Due to the changing landscape and views on cannabis use, employee protection laws are becoming more common in states where recreational cannabis use is lawful. Last month, we covered California’s recent amendment, SB-700, to its cannabis anti-discrimination laws.

Washington also enacted a new law to protect employee rights for the lawful use of cannabis. Below are a few highlights for employers subject to this law.

The purpose of Washington’s SB 5123

Washington’s employee cannabis use protection law was signed on May 9, 2023, and enacted on January 1, 2024. The law prohibits employers from discriminating against employees based on cannabis use off the job and away from the workplace or based on an employer-required drug screening test that found the presence of nonpsychoactive cannabis metabolites.

The law addresses the disconnect between prospective employees' legal activities and employers' hiring practices. It states that “tests for cannabis show only the presence of nonpsychoactive cannabis metabolites from past cannabis use, including up to 30 days in the past, do not correlate with an applicant's future job performance.”

The legislature intends to prevent restricting job opportunities based on an applicant's past use of cannabis and protect employees from retaliation and discrimination for the lawful use of cannabis outside of the workplace or the presence of non-psychoactive cannabis metabolites. To find out more, take a closer look at the entire law here.

Room left for employer action

Employers are restricted from retaliation and discrimination based on cannabis use outside of the workplace, as well as testing candidates for cannabis use in most scenarios. However, employers can still require testing for cannabis and other controlled substances in several situations, including the following:

• After an accident or based on a suspicion of impairment or being under the influence of alcohol or a controlled substance in the workplace.
• Employers who must test to comply with federal government background investigations and security clearances or those in the airline or aerospace industries.
• Employers who need to test for any safety-sensitive position for which impairment while working presents a substantial risk of death, provided such positions are identified by the employer before the applicant applies for employment.
  
  

Implications for employers in and out of state

This new Washington law applies to employers based in Washington but may also apply to employers who hire remotely within these states. Consequently, employers in and out of Washington should consult their legal counsel to determine if they need to adjust their drug testing policy.

Laws enacted to protect employees from discrimination or retaliation for lawful cannabis use in states that have legalized the recreational use of cannabis are on the rise. As the legal landscape for cannabis use and employer action evolves, Verified Credentials will do its best to keep clients updated.

If you would like to add a drug testing package without cannabis, we can help. Please get in touch with Verified Credentials support for assistance at 800.938.6090 or fill out this form.