LEGAL UPDATE: Cannabis Anti-Discrimination Law
by Danica Paddock | December 18, 2023How is the Changing Perception of Cannabis Impacting Employment Practices?
As legalized cannabis becomes more prevalent and widely accepted, so too have the attitudes and perspectives on cannabis usage evolved, including a shift in the current employment-related cannabis testing practices. Despite being a legal substance in Washington State, many employers still routinely choose to require applicants to be tested for cannabis, with positive test results often constituting a rejection of employment. This practice has faced opposition for being in stark contrast to how other legal substances, such as alcohol, are viewed and treated in employment, with most employers not even contemplating it as an issue. As legalized cannabis becomes more prevalent and widely accepted, employers can expect the current drug-testing landscape to shift.
Will Senate Bill 5123 Transform Cannabis Testing in Washington State
Senate Bill 5123, going into effect January 1, 2024, prohibits employers in Washington State from basing hiring decisions on the results of pre-employment drug testing for off-the-job cannabis use. Currently, employers are permitted to screen applicants for cannabis use, despite being a legal substance in Washington State. Once the law goes into effect, off-the-clock cannabis use can generally no longer be used in the hiring process, except in limited circumstances. Employers can, however, test for cannabis use during ongoing employment when aligned with the employer’s policies and practices.
What Exceptions Exist Under Senate Bill 5123?
Certain industries and positions remain exempt from the prohibition on pre-employment cannabis testing. These include positions in the airline and aerospace industries requiring federal background investigations or security clearances, specific public safety roles, and safety-sensitive positions where on-the-job impairment poses a significant risk of death. Additionally, jobs in building and construction trades fall under the exceptions.
How Must Employers Navigate Safety-Sensitive Positions and Pre-Employment Cannabis Testing?
For safety-sensitive positions requiring pre-employment cannabis testing, employers must communicate this requirement to applicants in advance. Employers should clearly explain why the position is safety-sensitive before the applicant applies. This ensures transparency in the hiring process.
Why is a Review of Drug-Testing Policies Crucial for Employers?
With the passage of the Cannabis No Discrimination Law, employers should review their current drug-testing policies and consult with legal counsel to ensure their practices comply with the law. Job postings for safety-sensitive positions should be updated so that potential applicants know that cannabis testing will be required and should include the reasoning behind the safety-sensitive classification. Employers still have the right to maintain a drug and alcohol-free workplace, so employers should be aware that policies can still reflect that cannabis use at work may be prohibited.