Washington introduces hiring protections for Recreational users of Marijuana
In 2010, Washington approved the use of recreational marijuana under Initiative 502.
However, this initiative allowed employers to reject applicants who used marijuana. As such, employers could reject applicants for testing positive for marijuana despite using the substance outside the workplace or work hours. Most marijuana tests look for metabolites, which can remain in an individual’s body weeks after consuming cannabis. As a result, they could test positive despite not using the substance for some time.
In 2019, Nevada became the first state to pass legislation to provide job applicants protection from discrimination based on positive results for marijuana use. Just last year, California also protected workers from discrimination in employment. As a result, both states prevent discrimination in the hiring or firing process based on off-the-clock marijuana use.
Washington will join these states now that Senate Bill 5123 has become law. As such, Washington will protect applicants from discrimination in the hiring process. However, it has proven less expansive than California’s example, as it only covers pre-employment drug testing. This lack of further protections means employers may continue testing for cannabis after hiring applicants.
According to the bill’s sponsor Senator Karen Kaiser, “It makes no sense to limit our state’s workforce by deterring qualified job applicants, especially at a time when the number of unfilled positions is at historic highs. This legislation opens doors for people who might otherwise not even put in an application — and that’s a win for workers and for employers.”
Employers may maintain a drug-free workplace, meaning they can test employees throughout employment. In addition, they may test for marijuana use due to accidents or suspicion of impairment. It also does not prohibit employers from performing pre-employment tests for other types of drug use.
The law also provides carve-outs for certain types of employers, including the airline and aerospace industries. It also provides exceptions for positions requiring federal background checks or security clearances. The bill included examples such as law enforcement, firefighters, and corrections officers.
With these changes, employers should review their policies and procedures regarding pre-employment testing for marijuana. Such review should include how they consider previous offenses for marijuana usage in pre-employment screening. The best way to get started is to work with an experienced screening provider that can help guide you through your options.
