WA Governor - Bill Action
(May 9, 2023) - SB 5123

Starting in 2024, Washington job seekers will no longer be discriminated against due to the presence of non-psychoactive cannabis metabolites during most pre-employment drug testing.

Here are some observations from the Tuesday May 9th Washington State Office of the Governor (WA Governor) Bill Action.

My top 2 takeaways:

• SB 5123, "Concerning the employment of individuals who lawfully consume cannabis," which removed the substance from pre-employment drug screenings for many job sectors, was passed by lawmakers after previous efforts failed.
  • Existing rules cover when an employer can require drug testing of a current employee—including for cannabis—as part of alcohol and drug-free workplace standards. Pre-employment screening also covered testing, often by use of urinalysis that can detect cannabis metabolites for days or weeks after use, barring cannabis consumers from some employment opportunities.
  • In 2017, HB 1094 proposed modifying workplace testing laws for medical cannabis patients only, and received a hearing by the Washington State House Labor and Workplace Standards Committee (WA House LAWS). A 2022 bill sponsored by Senator Karen Keiser would have removed cannabis from some pre-employment testing for anyone 21 and older and was heard by members of the Washington State Senate Labor, Commerce, and Tribal Affairs Committee—since renamed as the Washington State Senate Labor and Commerce Committee (WA Senate LC). Neither bill was recommended for passage by their respective committees.
    • Washington State Liquor and Cannabis Board (WSLCB) Director Rick Garza remarked in July 2021 that the Cannabis Regulators Association (CANNRA) had set up a committee to look at impaired driving, and workplace safety issues and agency leaders discussed workplace screenings that September as they considered the implications of federal cannabis legalization. 
  • WA Senate LC members heard the bill on January 10th, and recommended passage of a proposed substitute on January 31st. The Washington State Senate Rules Committee (WA Senate RULE) put the measure on the chamber’s calendar on February 8th, though the chamber didn’t amend and pass the bill until February 22nd.
    • A fiscal note revealed no expected budget impact from the proposal.
  • In the Washington State House of Representatives (WA House), SB 5123 was heard by WA House LAWS on March 14th, and members recommended passage on March 21st. The legislation was pulled to the House floor on March 24th, and passed after adding twoamendments on March 29th.
    • Following passage by the House, Keiser issued a press release indicating that the bill would make Washington the “third state to ban pre-employment cannabis tests.” Although a blog published by National Drug Screening, Inc. suggested other states barred some employers from taking “​​Adverse Action Against an Applicant or Employee Based Solely on a Positive Marijuana Test,” and that cities like Philadelphia and Washington D.C. also restricted pre-employment cannabis testing.
  • Rather than agree with the WA House changes, on April 14th senators disputed them, and requested the other chamber recede from the amendments. WA House members rescinded their changes in favor of different amended language on April 18th and Senators voted to concur with the revised bill language the next day.
  • The final bill report from April 19th explained the effects of SB 5123:
    • Prohibited Practices. Employers are prohibited from discriminating against a person in hiring if the discrimination is based upon: 
      • the person's use of cannabis off the job and away from the workplace; or 
      • an employer-required drug screening test that identifies non-psychoactive cannabis metabolites in the person's hair, blood, urine, or other bodily fluids. 
    • The bill does not: 
      • prohibit an employer from basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites; 
      • apply to testing for controlled substances other than pre-employment, such as postaccident testing or testing because of suspicion of impairment or being under the influence of alcohol, controlled substances, medications, or other substances; or 
      • affect the rights or obligation of an employer to maintain a drug and alcohol free workplace, or any other right or obligation of an employer required under federal law or regulation. 
    • Exceptions. The bill does not apply to applicants seeking a position: 
      • with a general authority Washington law enforcement agency; 
      • a fire department, fire protection district, or regional fire protection service authority; as a first responder, including a dispatcher position with a public or private 911 emergency communications system or a position responsible for the provision of emergency medical services; 
      • as a corrections officer with a jail, detention facility, or the Department of Corrections, including any position directly responsible for the custody, safety, and security of persons confined in those facilities; or 
      • a position in the airline or aerospace industries. 
    • The bill also does not apply to any other safety-sensitive position for which impairment while working presents a substantial risk of death. Safety-sensitive positions must be identified by the employer prior to the applicant's application for employment. 
    • The bill does not preempt state or federal law requiring an applicant to be tested for controlled substances as a condition of receiving employment, receiving federal funding or licensing-related benefits, or as required by federal contract. This includes laws requiring applicants to be tested or specifying the way they are tested. Employers may require an applicant to be tested for a spectrum of controlled substances, which may include cannabis, as long as the cannabis results are not provided to the employer.
      • Find out more from the Drug-Free Workplace Toolkit designed by the federal Substance Abuse and Mental Health Services Administration (SAMHSA).

• Governor Jay Inslee offered some comments before he signed the measure which was set to take effect at the start of 2024 (audio - 1m, video).
  • Mentioning SB 5123 “seeks to protect applicants from hiring discrimination if they use legal cannabis outside of work,” Inslee stated that the law featured exceptions to the protection for anyone “applying to work with the general authority law enforcement agency, a fire department, or an emergency medical service provider.” He noted that employers would be able to maintain drug-free workplaces and “prohibit applicants from using cannabis after they get hired,” before thanking Keiser for sponsoring the new law.
  • Inslee was joined by WSLCB Director of Legislative Relations Marc Webster, Kate Armstrong, Senator June Robinson’s Legislative Assistant, and two other attendees.
  • With the Governor’s signature, the legislative overview explains that “bills go to the Secretary of State who assigns a session law chapter number.” According to section 3 of the bill, the law goes into effect January 1st, 2024 and doesn’t mandate further rulemaking by state agencies.

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