WA Senate LCTA - Committee Meeting
(January 19, 2022) - SB 5517 - Public Hearing

Construction Site - Drug Free Workplace - Urine Testing
[ Event Details ]

A measure to change employment law around cannabis testing elicited more negative testimony than positive, but broad agreement that new methods to detect active impairment were needed.

Here are some observations from the Wednesday January 19th Washington State Senate Labor, Commerce, and Tribal Affairs Committee (WA Senate LCTA) Committee Meeting.

My top 4 takeaways:

  • WA Senate LCTA Counsel Matt Shepard-Koningsor gave a short overview of SB 5517, "Concerning employment of individuals who lawfully consume cannabis."
    • Shepard-Koningsor went over the bill analysis, which said the proposal barred “an employer from refusing to hire a prospective employee and discharging a current employee, with certain exceptions, due to a positive cannabis test” (audio - 1m, video):
      • He said the prohibition wouldn’t apply in certain circumstances:
        • “Where compliance would cause an employer to lose a monetary or licensing-related benefit under federal law.”
        • “Where inconsistent or in conflict with an employment contract, collective bargaining agreement, or federal law.”
        • “Where a position of employment is funded by a federal grant.”
      • Shepard-Koningsor indicated that the fiscal note showed “non-zero but indeterminate fiscal impacts for the courts based on potential increased caseloads.”
      • Chair Karen Keiser had Shepard-Koningsor confirm that the bill had exemptions for federal employment situations. He affirmed it did, going further to point out that, in the legislation, “employers do have the ability to create” drug-free workplace policies (audio - 1m, video).
      • Ranking Member Curtis King asked if drug-free workplace policies allowed for pre-employment drug screening. Shepard-Koningsor responded that there were “requirements under state law for that, there are even example provisions for that,” and SB 5517 “would apply in cases where that does not exist.” He promised to research more and follow up with King (audio - 1m, video).
        • Title 49 of the Revised Code of Washington (RCW) included RCW 49.82 on Drug-Free Workplace Policies until the statutes expired in 2001. There are also required drug testing laws for persons driving “a commercial motor vehicle within this state.”
        • Rules in WAC 357-37-200 cover when an employer can require drug testing of a current employee.
      • Workplace cannabis screening was also something Washington State Liquor and Cannabis Board (WSLCB) leaders discussed in September 2021 as they considered the implications of federal legalization of cannabis in the state. WSLCB Director Rick Garza also reported that the Cannabis Regulators Association (CANNRA) had set up a committee to look at impaired driving and workplace safety issues.
      • In 2017, similar legislation, HB 1094, was proposed to modify workplace testing laws for medical cannabis patients.Specifically:
        • “Prohibits an employer from discriminating against a medical marijuana qualifying patient because of the individuals' status as a qualifying patient or positive marijuana drug test.”
        • “Allows an employer to discriminate if the qualifying patient used, possessed, or was impaired by marijuana on the work site premises or during work hours, or if compliance would cause an employer to lose a federal monetary or licensing-related benefit.”
        • The bill’s single public hearing was in the Washington State House Labor and Workplace Standards Committee, and while there was no public broadcast I attended it. I was working as the Legislative Liaison for the Washington chapter of the National Organization for the Reform of Marijuana Laws (WA NORML) and signed in ‘Pro’ on the bill without testifying. Following the hearing, I emailed members with some additional information on the topic and why I supported the bill.
        • My personal recollection was that besides the bill sponsor, public testimony was entirely against the bill, and entirely from construction and business association representatives. I remember finding their comments about urinalysis and blood cannabis testing confusing, and contradictory to my own understanding. Being a constituent of one of the committee’s members at that time, Beth Doglio, I voiced my skepticism about the accuracy of some of the testimony they’d heard shortly after the meeting. She told me some members of the committee also felt they hadn’t gotten a complete picture of the issue, but when public comment is completely against a bill lawmakers can be hesitant to act.
  • Though 25 people indicated they supported the bill, two representatives of the cannabis industry were the only ones to testify for its passage.
    • Keiser, the measure’s primary sponsor, said “the war on drugs has had really negative impacts on so many communities and part of that has been almost universal approaches to drug testing.” She explained that contemporary tests for cannabis lacked a gauge of impairment and “only measures whether you’ve had exposure to marijuana or cannabis in the last couple of weeks” rather than on-the-job inebriation. Keiser suggested employer cannabis drug testing policies “should be revisited and updated” (audio - 1m, video).
      • Senator Ann Rivers claimed that a "major industrial business" had "lost one of its workers, a welder, because he had imbibed just prior to starting his shift.” While unclear how cannabis related to the situation causing the death, she did know that the company’s Washington State Department of Labor and Industries (WA LNI) insurance “rates went through the roof." Rivers wondered what in SB 5517 would make it clear to that agency that insurance costs for business owners shouldn’t change in circumstances where an employee used cannabis “just prior to coming to work.” Keiser thought this was an "interesting question," observing the same problem “happens with alcohol, as you know…other drugs as well.” She felt the situation had “no easy answers” (audio - 1m, video).
    • Caitlein Ryan, The Cannabis Alliance Interim Executive Director (audio - 1m, video)
      • Ryan said her group had been "inundated with messages of excited support” from her members before even sharing the bill with them. “As you mentioned, there is no accurate measure of impairment as it exists,” she testified, and “until that happens, this policy of tying employment to the tests that are currently given is discriminatory.” She emphasized, “our [medical cannabis] patient population is deeply impacted and it severely limits their ability to seek employment.”
    • Micah Sherman, Raven Co-Owner and Washington Sun and Craft Growers Association (WSCA) Board Member (audio - 2m, video)
      • Supportive of Keiser and Ryan’s remarks, Sherman added that before becoming a cannabis licensee he’d been “an architect and a project manager of large construction projects” employing “many hundreds of people.” In his experience, “this sort of pre-employment screening is not going to make job sites safer, it’s not gonna make workplaces safer, it’s simply a tool that can be used to control people’s behavior outside of the workplace, and that’s an inappropriate policy” until a test could be designed to consistently measure impairment.
    • Signed in but not testifying (23):
  • Three people testified as ‘other’ on SB 5517, mentioning desired exemptions for law enforcement, hospital, and commercial trucking staff.
    • Taylor Gardner, Washington Association of Sheriffs and Police Chiefs (WASPC) Deputy Policy Director (audio - 2m, video)
      • Gardner acknowledged that cannabis was legalized for “qualified persons” and the intent of the bill to protect “persons in the workforce, or seeking to enter the workforce, while exercising their freedoms is important.”
      • She offered two potential changes to the bill:
        • “While it’s presumably implied under the exceptions listed in subsection 2 of the bill draft, we would request a specific and explicit carveout be made for law enforcement and criminal justice personnel” rather than “navigate the waters of who would be barred by the federal law conflicts.”
        • “Consider revising the term ‘they’...in section 2, paragraphs (b) and (c)" instead of leaving it “presumed that those are referencing the provisions set forth in section 1” as further clarity “will only assist in interpretation of it and application of it in the future.”
    • David Streeter, Washington State Hospital AssociationPolicy Director for Clinical and Data (audio - 1m, video)
      • Streeter conveyed the concerns of the association that hospitals would lose flexibility around their cannabis-testing policies “that are reflective of the unique patient safety considerations that exist for certain positions within a hospital.” He stated that many hospitals tested both employees and applicants "out of abundance of caution for patients," both those interacting with patients directly and those “whose positions have a direct impact on patient care.” Streeter viewed the "one-size fits all policy" in the bill as impacting hospitals’ independence to decide “which positions are most appropriate for cannabis screening” and asked for an exemption for hospitals.
      • Keiser asked about what substances besides cannabis hospitals tested applicants and employees for (audio - <1m, video). 
      • Senator Rebecca Saldaña wondered about impairment from lawfully prescribed prescriptions or over-the-counter drugs and how hospitals handled this, particularly if it was dealt with “different, or the same” as medical cannabis use. Keiser agreed with her that “it would be good to have more information on whether the industry does have other drug testing protocols as well” (audio - 1m, video). 
    • Jeff DeVere, Wastington Trucking AssociationLobbyist (audio - 2m, video).
      • “Our members are struggling” with the legislation as they wanted to ensure safety for their employees and the public, DeVere commented, even as “drivers, obviously, would be encapsulated, I think, under the federal law.” He asked for specific wording similar to exceptions in a Nevada law barring “failing or refusing to hire prospective employee based on screening test which indicates presence of marijuana.”
      • Learn more about the Nevada drug testing law from a December 2019 letter released by the Nevada Office of the Labor Commissioner.

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