Washington S.B. 5123: Off-Duty Cannabis Use Employment Protections

On May 9, 2023, Governor Jay Inslee signed Washington Senate Bill 5123 (S.B. 5123) into law, essentially limiting many employers from discriminating against job applicants for off-duty cannabis use and preventing some from making hiring decisions based on drug tests that screen for non-psychoactive metabolites.

The law, which takes effect January 1, 2024, does not apply to most safety-related positions, first responders, or employers subject to federally-regulated testing programs, among others. Additionally, Washington S.B. 5123 does not apply to testing reasons beyond pre-employment screening.

With S.B. 5123, Washington is the latest state to pass employment protections for off-duty cannabis use while limiting tests that detect non-psychoactive metabolites of the drug. In September 2022, California passed a similar protection with CA A.B. 2188.

We explain what Washington S.B. 5123 is and what it may mean for employers below.

Below is the full text of WA S.B. 5123.¹

State of Washington 68th Legislature 2023  

Regular Session By Senate Labor & Commerce (originally sponsored by Senators Keiser, Frame, Hunt, Kuderer, Mullet, Nguyen, Randall, Stanford, Van De Wege, and Wellman).  

AN ACT Relating to the employment of individuals who lawfully consume cannabis; adding new sections to chapter 49.44 RCW; and providing an effective date. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:  

SECTION 1.

A new section is added to chapter 49.44 RCW to read as follows: 

The legislature finds that the legalization of recreational cannabis in Washington state in 2012 created a disconnect between prospective employees’ legal activities and employers’ hiring practices. Many tests for cannabis show only the presence of non-psychoactive cannabis metabolites from past cannabis use, including up to 30 days in the past, that have no correlation to an applicant’s future job performance. 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, despite both being legally allowed controlled substances. The legislature intends to prevent restricting job opportunities based on an applicant’s past use of cannabis. 

SECTION 2.

A new section is added to chapter 49.44 RCW to read as follows: 

(1) It is unlawful for an employer to discriminate against a person in the initial hiring for employment if the discrimination is based upon:

• (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 non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. 

(2) Nothing in this section:

• (a) Prohibits an employer from basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites;
• (b) Affects the rights or obligations of an employer to maintain a drug and alcohol-free workplace, or any other rights or obligations of an employer required by federal law or regulation; or
• (c) Applies to testing for controlled substances other than pre-employment, such as post-accident testing or testing because of a suspicion of impairment or being under the influence of alcohol, controlled substances, medications, or other substances.  

(3) This section does not apply to an applicant applying for a position that requires a federal government background investigation or security clearance or in the airline or aerospace industries.

(4) (a) This section does not preempt state or federal laws requiring an applicant to be tested for controlled substances. This includes state or federal 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.

• (b) Employers may require an applicant to be tested for a spectrum of controlled substances, which may include cannabis, as long as the cannabis results are not provided to the employer. Such policies are fully subject to subsection (1) of this section.

(5) For the purposes of this section, “cannabis” has the meaning provided in RCW 69.50.101.

SECTION 3.

This act takes effect on January 1, 2024.

WHAT THIS MEANS FOR EMPLOYERS

Washington will be the eighth state to enact a law that protects employees’ use of cannabis outside of work. Another 15 states legally protect medical marijuana patients from discrimination for legal cannabis use.²

The practical impact for some Washington employers is that they will no longer be able to test for cannabis using sample types that detect non-psychoactive cannabis metabolites. As stated in the new law, this is because metabolites do not correlate to an applicant’s future job performance. 

However, based on our understanding of the new law, breath testing for cannabis will remain a viable solution in Washington after this law takes effect. That’s because our cannabis breathalyzer detects the active THC molecule rather than its metabolites and provides reliable detection of recent and workday use.  

For more information on our cannabis breath testing solution, the HOUND^® CANNABIS BREATHALYZER, click here or reach out to our sales team for assistance.