New Year/New Laws - California and Washington to Amend Workplace Drug Testing

Effective January 1, 2024, employers in California and Washington who engage in employment drug testing should evaluate their current testing programs to comply with new state laws affording increased protection for adult marijuana users. The legislation imposes restrictions on workplace drug testing associated with cannabis, and employers in both states are prohibited from refusing to hire qualified applicants who test positive for marijuana, with an exception for specific industries or safety-sensitive positions, such as working for the federal government, law enforcement, or positions when on-the-job impairment presents a significant risk of injury or death.

On May 9, 2023, Washington Governor Jay Inslee approved Senate Bill 5132 (SB 5132), which prohibits employers from making hiring decisions based on pre-employment drug testing of non-psychoactive cannabis metabolites. This new act safeguards job applicants from discrimination in the hiring process when they legally use cannabis outside of the workplace. If employers wish to continue pre-employment marijuana testing, SB 5132 requires employers to utilize scientifically valid tests that do not screen for non-psychoactive cannabis metabolites. There are a few exceptions that exempt employers from solely using test methods that do not detect non-psychoactive cannabis metabolites, including those seeking positions requiring a federal government background investigation or security clearance, and state or federal government-required testing as a condition of employment, receiving funding or federal licensing-related benefits, or as required by federal contracts. SB 5132 introduced new sections into chapter 49.44 of the Revised Code of Washington (RCW). The new sections read as follows:

SECTION 1. The legislature finds that the legalization of recreational cannabis in Washington state in 2012 created a disconnect between prospective employees’ legal activities and employers’ hiring practices. Many tests for cannabis show only the presence of non-psychoactive cannabis metabolites from past cannabis use, including up to 30 days in the past that has no correlation to an applicant’s future job performance. Applicants are much less likely to test positive or be disqualified for the presence of alcohol on a pre-employment screening test compared with cannabis, despite both being legally allowed controlled substances. The legislature intends to prevent restricting job opportunities based on an applicant’s past use of cannabis.

SECTION 2.1 It is unlawful for an employer to discriminate against a person in the initial hiring for employment if the discrimination is based upon (a) The person’s use of cannabis off the job and away from the workplace; or (b) An employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

SECTION 2.2 Nothing in this section: (a) Prohibits an employer from basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites; (b) Affects the rights or obligations of an employer to maintain a drug and alcohol-free workplace, or any other rights or obligations of an employer required by federal law or regulation; or (c) Applies to testing for controlled substances other than pre-employment, such as post-accident testing or testing because of a suspicion of impairment or being under the influence of alcohol, controlled substances, medications, or other substances.

SECTION 2.3 This section does not apply to an applicant seeking: (a) A position requiring a federal government background investigation or security clearance; (b) A position with a general authority Washington law enforcement agency as defined in RCW 10.93.020; (c) A position with a fire department, fire protection district, or regional fire protection service authority; (d) A position as a first responder not included under (b) or (c) of this subsection, including a dispatcher position with a public or private 911 emergency communications system or a position responsible for the provision of emergency medical services; (e) A position 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; (f) A position in the airline or aerospace industries; or (g) A safety sensitive position for which impairment while working presents a substantial risk of death. Such safety-sensitive positions must be identified by the employer prior to the applicant’s application for employment.

SECTION 2.4 This section does not preempt state or federal laws requiring an applicant to be tested for controlled substances. This includes state or federal laws requiring applicants to be tested, or the way they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or as required by a federal contract. (b) 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. Such policies are fully subject to subsection (1) of this section.

SECTION 2.5 For the purposes of this section, “cannabis” has the meaning provided in RCW 69.50.101.

SECTION 3. This act takes effect January 1, 2024.

California’s new laws, Senate Bill 700 (SB 700) and Assembly Bill 2188 (AB 2188), were approved on October 7, 2023, amending section 12954 of the Government Code. SB 700 makes it unlawful for employers to discriminate against job applicants based on prior cannabis use learned from criminal history or to ask about prior cannabis use, except where employers are permitted to consider or inquire about prior cannabis use under state or federal law (i.e., positions requiring federal background check or clearance or regulated by a federal agency).

AB 2188 prohibits employers from discriminating against a person in hiring, termination, or any term or condition of employment or otherwise penalize a person due to cannabis consumption away from the workplace, except as specified. AB 2188 also makes it unlawful to discriminate against applicants based on an employer-required drug screening test that detects the presence of non-psychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids. The amended section 12954 of the Government Code reads as follows:

12954. (a) (1) Except as specified in subdivision (c), it is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalizing a person if the discrimination is based upon any of the following:

(A) The person’s use of cannabis off the job and away from the workplace. This paragraph does not prohibit an employer from discriminating in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid pre-employment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites.

(B) An employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

(2) This subdivision does not apply to an employee in the building and construction trades.

(b) Except as specified in subdivision (c), it is unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis.

(c) Information about a person’s prior cannabis use obtained from the person’s criminal history is subject to subdivisions (a) and (b) unless the employer is permitted to consider or inquire about that information under Section 12952 or other state or federal law.

(d) This section does not permit an employee to possess, to be impaired by, or to use, cannabis on the job, or affect the rights or obligations of an employer to maintain a drug- and alcohol-free workplace, as specified in Section 11362.45 of the Health and Safety Code, or any other rights or obligations of an employer specified by state or federal law or regulation.

(e) This section does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances, including laws and regulations requiring applicants or employees to be tested, or the manner in which they are tested, as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

(f) This section does not apply to applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with regulations issued by the United States Department of Defense pursuant to Part 117 of Title 32 of the Code of Federal Regulations, or equivalent regulations applicable to other agencies.

(g) This section shall become operative on January 1, 2024.

Options for Employers

Several oral fluid testing options, including AccuSourceHR’s OralTox Instant Oral Fluid Drug Test, afford the ability to test for the target analyte active THC, which can indicate current impairment but does not test non-psychoactive cannabis metabolites. OralTox is FDA-approved, and laboratory management system (LMS) supported, affording the option for an electronic chain of custody tracking, digital interpretation of results, and same specimen confirmation testing.

Employers potentially impacted by the recent legislation should consult with their legal counsel to ensure on-going legal compliance in their substance abuse testing programs. AccuSourceHR offers an interactive map of state marijuana legislation to provide resources for evaluating state-specific testing requirements.

Would you like to learn more about how AccuSourceHR can benefit your drug screening program? Click here to schedule a complimentary personalized program evaluation.