The Hazy Landscape of Cannabis and Employment

Washington State continues to evolve its stance on cannabis, and recent legislation has significantly altered the landscape. Engrossed Substitute Senate Bill 5123 (ESSB 5123), effective January 1, 2024, aims to balance the rights of employees who use cannabis responsibly with the needs of employers to maintain safe and productive workplaces. Let’s explore the key provisions of this new law and its implications for both workers and employers.

Protection for Employees

ESSB 5123 makes it unlawful for employers to discriminate against applicants based on their off-the-job cannabis use. This means employers can no longer reject an applicant solely because a pre-employment drug screening reveals the presence of nonpsychoactive cannabis metabolites. These metabolites can linger in the body for weeks after consumption, even when the individual is no longer impaired. The law recognizes this discrepancy and seeks to prevent applicants from being penalized for lawful activities outside of work. This is a significant step towards aligning hiring practices with the reality of legalized cannabis use.

Safeguards for Employers

While ESSB 5123 protects employees, it also includes important provisions to safeguard employers’ interests. The law does not prevent employers from maintaining drug and alcohol-free workplaces. Employers can still conduct scientifically valid drug screenings that don’t specifically target nonpsychoactive cannabis metabolites. Critically, the law does not apply to certain safety-sensitive positions, such as those requiring federal background checks, law enforcement roles, firefighters, first responders, corrections officers, and positions in the airline or aerospace industries. Employers can also continue to test for other controlled substances and conduct testing in situations like post-accident investigations or when there is reasonable suspicion of impairment.

Navigating the Federal-State Conflict

The intersection of state and federal law regarding cannabis remains a complex issue. While Washington has legalized recreational cannabis, it remains illegal under federal law. ESSB 5123 acknowledges this conflict and clarifies that it does not preempt federal laws requiring drug testing. This means employers subject to federal regulations or contracts may still be required to test for cannabis, even if the results are not disclosed to them. This provision attempts to strike a balance between state protections for employees and federal mandates.

Looking Ahead

ESSB 5123 represents a significant shift in Washington employment law. By prohibiting discrimination based on off-the-job cannabis use, the law offers new protections for workers. Simultaneously, it preserves employers’ ability to maintain safe workplaces and comply with federal regulations. As the legal landscape surrounding cannabis continues to evolve, staying informed about these changes is crucial for both employees and employers.

If you or your company need help navigating employment law matters, we are here to provide you with sound counsel.

— Rod