Beginning 2024 Washington Employers May Not Discriminate Against Off-Duty Cannabis Use in Hiring

Beginning January 1, 2024, Washington employers are generally prohibited from discriminating against applicants based on the candidate’s cannabis use while off-duty and away from the workplace. Employers are also restricted from receiving and considering pre-employment drug screens for cannabis*, except in certain fields including law enforcement, fire departments, first responders, those working in jail and detention facilities, those working in airline or aerospace industries, and “safety sensitive position[s] for which impairment while working presents a substantial risk of death.”  RCW 49.44.240.  

Employers who wish to conduct pre-employment drug screening for cannabis-based upon the “safety sensitive position” exception should review RCW 49.44.240 and evaluate all affected positions. Unfortunately, the statute does not provide an express definition of a “safety sensitive position,” but we do know that such a position must at least present a “substantial risk of death” as a result of impairment to the employee or others – a very high standard. 

RCW 49.44.240 does not preempt state or federal laws requiring pre-employment drug screening. Nor does the new statute impede an employer’s ability to conduct pre-employment testing for other controlled substances, even if such testing includes cannabis as part of the spectrum of controlled substances tested for, so long as the cannabis results are not provided to the employer. Finally, an employer’s right to engage in post-employment testing for cannabis or any other controlled substance, including post-accident testing and reasonable suspicion testing, remains unchanged.

Employers are encouraged to speak with their testing partners and obtain specific information about what substances are included in the testing panels used and request that cannabis be removed when included during pre-employment. Where cannabis cannot be removed from the testing panel, employers and their testing partners should establish a protocol whereby cannabis results will not be provided to the employer pre-employment. Job descriptions should be updated to reflect any determination that a position is “safety-sensitive” and employers are encouraged to include the designation of “safety-sensitive position” in job postings and all advertisements soliciting applications for employment. 

Please contact Associated Industries’ Member Care at 509-777-2727 with additional questions regarding pre-employment drug testing or any other HR questions.

* RCW 49.44.240 only prohibits testing for “nonpsychoactive cannabis metabolites,” however tests that do not screen for nonpsychoactive cannabis metabolites are not currently generally available or reliable so the new restriction effectively prohibits all pre-employment testing for cannabis use.