Many new regulations have taken effect with the start of the new year. For Washington employers, this includes a new ban on pre-employment marijuana testing for most new hires. On January 1, a new regulation took effect that prohibits employers from taking adverse action against new hires based on a positive test for marijuana.

Under SB 5123, Washington law has changed to state:

1. “It is unlawful for an employer to discriminate against a person in the initial hiring for employment if [basing] the discrimination upon:
2. The person’s use of cannabis off the job and away from the workplace or
3. An employer-required drug screening test has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”

The law does not prohibit employers from “basing initial hiring decisions on scientifically valid drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites.” However, it does not specify what kind of testing this may include. Tests on the market cannot distinguish between psychoactive metabolites, which indicate intoxication, and non-psychoactive.

As a result, it is effectively impossible to perform pre-employment testing for marijuana usage. However, the law does not prohibit employers from testing outside of this context. This permission means employers may test due to a workplace accident or when suspecting an employee of impairment.

The law does not preempt existing state law or...

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