Following in California’s footsteps, Washington recently passed SB 5123, which protects individuals that lawfully use marijuana, in employment-related decisions. The law takes effect January 1, 2024.
What SB 5123 Does
SB 5123 makes it an unlawful practice for employers to discriminate against an individual in the initial hiring stage if the discrimination is based on: (i) the person’s use of cannabis off the job and away from the workplace, or (ii) an employer-required drug test that found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
Employers may make decisions based on “scientifically valid drug screening conducted through methods that do not screen for nonpsychoactive cannabis metabolites.” Employers may maintain drug and alcohol-free workplaces. The law also does not infringe on any rights or obligations of employers required by federal law or regulation. Further, the law does not apply to testing done beyond the pre-employment stage such as post-accident or reasonable suspicion testing.
There are several exemptions under the law including safety sensitive positions where “impairment while working presents a substantial risk of death.” The law notes such positions must be identified by the employer prior to the applicant’s application for employment. The law also does not preempt any state or federal laws requiring an applicant to be tested for controlled substances.
Employers are encouraged to consult with qualified legal counsel to determine what drug test may be appropriate in Washington, or to determine if they meet one of the law’s various exemptions.
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