AN ACT Relating to the employment of individuals who lawfully 1consume cannabis; adding new sections to chapter 49.44 RCW; and 2providing an effective date.3
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:4NEW SECTION. Sec. 1. A new section is added to chapter 49.44 5RCW to read as follows:6
The legislature finds that the legalization of recreational 7cannabis in Washington state in 2012 created a disconnect between 8prospective employees' legal activities and employers' hiring 9practices. Many tests for cannabis show only the presence of 10nonpsychoactive cannabis metabolites from past cannabis use, 11including up to 30 days in the past, that have no correlation to an 12applicant's future job performance. Applicants are much less likely 13to test positive or be disqualified for the presence of alcohol on a 14preemployment screening test compared with cannabis, despite both 15being legally allowed controlled substances. The legislature intends 16to prevent restricting job opportunities based on an applicant's past 17use of cannabis.18NEW SECTION. Sec. 2. A new section is added to chapter 49.44 19RCW to read as follows:20
ENGROSSED SUBSTITUTE SENATE BILL 5123
AS AMENDED BY THE HOUSE
Passed Legislature - 2023 Regular Session
State of Washington 68th Legislature 2023 Regular Session
By Senate Labor & Commerce (originally sponsored by Senators Keiser,
Frame, Hunt, Kuderer, Mullet, Nguyen, Randall, Stanford, Van De Wege,
and Wellman)
READ FIRST TIME 02/01/23.
p. 1 ESSB 5123.PL
(1) It is unlawful for an employer to discriminate against a 1person in the initial hiring for employment if the discrimination is 2based upon:3
(a) The person's use of cannabis off the job and away from the 4workplace; or5
(b) An employer-required drug screening test that has found the 6person to have nonpsychoactive cannabis metabolites in their hair, 7blood, urine, or other bodily fluids.8
(2) Nothing in this section:9
(a) Prohibits an employer from basing initial hiring decisions on 10scientifically valid drug screening conducted through methods that do 11not screen for nonpsychoactive cannabis metabolites;12
(b) Affects the rights or obligations of an employer to maintain 13a drug and alcohol free workplace, or any other rights or obligations 14of an employer required by federal law or regulation; or15
(c) Applies to testing for controlled substances other than 16preemployment, such as postaccident testing or testing because of a 17suspicion of impairment or being under the influence of alcohol, 18controlled substances, medications, or other substances.19
(3) This section does not apply to an applicant seeking:20
(a) A position requiring a federal government background 21investigation or security clearance;22
(b) A position with a general authority Washington law 23enforcement agency as defined in RCW 10.93.020;24
(c) A position with a fire department, fire protection district, 25or regional fire protection service authority;26
(d) A position as a first responder not included under (b) or (c) 27of this subsection, including a dispatcher position with a public or 28private 911 emergency communications system or a position responsible 29for the provision of emergency medical services;30
(e) A position as a corrections officer with a jail, detention 31facility, or the department of corrections, including any position 32directly responsible for the custody, safety, and security of persons 33confined in those facilities;34
(f) A position in the airline or aerospace industries; or35
(g) A safety sensitive position for which impairment while 36working presents a substantial risk of death. Such safety sensitive 37positions must be identified by the employer prior to the applicant's 38application for employment.39
p. 2 ESSB 5123.PL
(4)(a) This section does not preempt state or federal laws 1requiring an applicant to be tested for controlled substances. This 2includes state or federal laws requiring applicants to be tested, or 3the way they are tested, as a condition of employment, receiving 4federal funding or federal licensing-related benefits, or as required 5by a federal contract.6
(b) Employers may require an applicant to be tested for a 7spectrum of controlled substances, which may include cannabis, as 8long as the cannabis results are not provided to the employer. Such 9policies are fully subject to subsection (1) of this section.10
(5) For the purposes of this section, "cannabis" has the meaning 11provided in RCW 69.50.101.12NEW SECTION. Sec. 3. This act takes effect January 1, 2024.
