Washington recently passed a bill that is a step forward in protecting employees and job applicants from discrimination based on off-duty cannabis use. Washington’s Senate Bill 5123 prevents employers from denying employment to applicants who consume cannabis outside of work and restricts the use of drug tests that detect non-psychoactive cannabis metabolites. RCW 49.44.240. This bill was passed in early 2024.
The Goal of the Legislation
The goal of this legislation is to prevent applicants from being penalized for past cannabis use that does not affect their job performance, while promoting fairer treatment of candidates across various employment sectors. RCW 49.44.240 recognizes the disconnect between legal cannabis use and employment practices, and acknowledges that past cannabis use should not be equated with inadequate employment qualifications. Additionally, the legislation made a comparison between employees using alcohol and cannabis, which are both legal substances under Washington law. The legislature noted that “applicants are much less likely to test positive or be disqualified for the presence of alcohol on a pre-employment screening test compared with cannabis.” RCW 49.44.240. To address this issue, the legislature seeks to ensure that job applicants are not disqualified solely based on prior cannabis use.
Studies on Cannabis and Workplace Safety
Recent studies have questioned the link between cannabis use and workplace accidents or injurie. These studies suggest that off-duty cannabis use is not positively associated with higher rates of occupational accidents. One study conducted with Canadian workers found no difference in workplace injury risk for those who consumed cannabis outside of work compared to non-users, suggesting that non-workplace cannabis use does not increase the likelihood of workplace injury. Canadian Journal of Public Health, 2023. These findings align with the goals of Washington’s new law, that aims to protect employees from discrimination based on non-impairing cannabis use.
Balancing Employee Protection with Public Safety
The new Washington law is meant to balance employee protections with public safety concerns. Certain positions are exempt from this law, such as roles involving significant public safety responsibilities or high-risk work environments. This includes first responders, such as police officers, firefighters, and 911 dispatchers, corrections officers, and jobs in aerospace. RCW 49.44.240(3)(a-g). For these positions, recent off-duty cannabis use could potentially affect safety outcomes, so the legislature determined safety concerns warranted a continued emphasis on rigorous screening. The law also applies an exemption for jobs where the risk of serious injury or death could be heightened by cannabis use, recognizing that safety risks necessitate higher standards in screening and hiring practices.
Limitations of Washington’s Cannabis Employment Law
It is important to note that Washington’s law is limited to pre-employment drug testing. An employee can be tested for post-accident testing or testing because of a suspicion of impairment or being under the influence. RCW 49.44.240(2)(c). Additionally, employers can still require drug tests that test a range of other controlled substances, as long as the results provided to the employer do not report on the cannabis use.
Interaction with Federal Laws
Washington’s legislation also interacts with federal laws which present unique challenges for certain industries and positions. Cannabis remains illegal under federal law, and federal regulations require drug and alcohol testing for certain roles, specifically those involving federal contracts or safety-sensitive duties. Federal mandates for drug testing still apply in these cases, which could override Washington’s protections. This means that federally regulated positions may continue to require more comprehensive drug screening. This contrast reflects ongoing complexities in harmonizing state and federal cannabis policies.
Looking Ahead: A Step Toward Fairer Employment Practices
Overall, Washington’s S.B. 5123 represents a significant move toward protecting the privacy and rights of job applicants while ensuring public safety. As more states enact similar laws, employers across the U.S. may need to reevaluate their testing policies and adopt fair, science-based approaches that focus on recent use rather than past, non-impairing cannabis consumption. By addressing the nuances of cannabis testing, this law works towards creating a workplace environment that respects individual rights while remaining committed to safety and productivity.