Recently Washington joined California with state legislation governing urine testing for marijuana (THC the metabolite that shows on a drug test). California enacts their law January 2024 prohibiting urine testing for THC for pre-employment and random testing. Washington, starting January 2024, chose to only ban THC in urine testing for pre-employment. This is only concerning NonDOT testing so Federal testing is obviously not affected also not affected would be NonDOT safety sensitive positions but they need to be identified by the company prior to posting job positions. Companies in these states need to plan on how they will test for these applicable reasons (pre employment or random) with the key to remember that this legislation only bans testing methods that detect non psychoactive marijuana. Non psychoactive is found in the body days after marijuana is used which is detected by urine testing and also hair follicle testing.
The current urine testing detects Delta 9-THC which is the metabolite of the parent drug. It is not the psychoactive component these states are allowing so a urine test detecting THC would be prohibited. The laboratories have advised employers that there are two immediate options- (1) remove marijuana from the urine panels. Or (2) convert to oral fluid testing, that does test for the psychoactive component.
Oral fluid testing is currently the only method that can identify psychoactive cannabis because of its short detection window. Detection in the breath can also identify the psychoactive component. Until the breathalyzer for marijuana is more standardized and more available the oral fluid method will be pushed by the labs to get around this bill. Currently, as of end 2023, the testing for marijuana recent usage in the breath is not available in Washington or California markets but will be later in 2024. The breathalyzer will eventually assist employers the best in discerning if an employee is impaired on psychoactive cannabis.
Companies may elect to keep their testing consistent across all employees and continue to utilize urine testing. Following this thought a company may choose to simply exclude THC from the pre employment urine test for those NonDOT positions that are not safety sensitive. If randoms are another testing reason that require THC excluded, such as in California, then companies will have to exclude THC in that urine test as well. Policies can still state that various methods may be used so they can benefit from future technology advancements.
Another detail of the law that employers must address is if they plan to designate some NonDOT employees as safety sensitive and exempt from the law. California for instance identifies occupations such as construction that are exempt while Washington attempts to require employers that impairment in the position must cause someone's death. Washington's requirement is thought by many to be unrealistic. In a recent conversation between Minert & Associates and a firm providing legal counsel on discrimination both sides agreed that companies can use much more prudent conditions rather than "death". Regardless, the employers are responsible to justify what positions are safety sensitive if they want to exclude those positions from the law.
Please contact Minert & Associates if you have additional questions for testing your NonDOT employees in Washington and/or California.
