| To: | Chief Nursing Officers, Rural Hospital Chief Executive Officers, Legal Counsel, HR Leads and Government Affairs Leaders |
Staff Contact: |
Remy Kerr, MPH, Policy Director, Government Affairs remyk@wsha.org | 206-216-2514 Mary Storace, Policy Analyst, Government Affairs |
| Subject: | New law prohibits employers from making preemployment hiring decisions against an applicant due to cannabis use – Effective January 1, 2024 |
Purpose
The purpose of this bulletin is to inform hospitals that effective January 1, 2024 employers are prohibited from rejecting an applicant during the preemployment hiring process due to cannabis use. Specifically, employers are prohibited from making initial hiring decisions based on an applicant’s cannabis use outside of work, or due to a positive test or screening that detects non-psychiatric cannabis in hair, blood, urine or other bodily fluids. This is pursuant to ESSB 5123 (2023), codified at RCW 49.44.240.
The intent of the legislation is to ensure that job opportunities are not restricted based on an individual’s legal cannabis use. The legislature found that non-psychoactive cannabis metabolites can stay in the body for weeks after last use and many tests cannot detect an individual’s current cannabis related impairment. Therefore, this law makes it illegal for employer to discriminate against applicants due to compounds present from previous cannabis use. There are some exceptions for safety-sensitive, first responder/emergency response, aviation, and federal positions.
Applicability/Scope
A new section has been added to chapter 49.44 RCW, which prohibits employers from making a hiring decision against an applicant in the preemployment process due to their cannabis use. This requirement applies to employers across Washington, including hospitals. However, there are exceptions to this prohibition. For instance, if a position within the hospital is designated as a safety-sensitive position and identified by the employer prior to the applicant submitting an application, it is exempt from the prohibition.
This new requirement does not affect the rights of an employer to base an initial hiring decision on a scientifically valid drug screening that does not screen for non-psychoactive cannabis, the right of an employer to maintain a drug and alcohol-free workplace, or the right of an employer to test for other controlled substances.
Recommendations
- Review this bulletin and ESSB 5123 to understand the scope of the law. WSHA recommends hospitals engage legal, risk, compliance, and leadership as appropriate to evaluate compliance with the new law.
- Update preemployment hiring policies to ensure compliance with the new law, including identifying positions that meet exceptions to the prohibition on pre-employment drug testing for cannabis.
- Inform internal HR departments of the new law and establish process for reviewing positions for compliance with the law.
Overview
ESSB 5123 (codified at RCW 49.44.240) amends state law to make it unlawful discrimination for Washington state employers to reject a job applicant during the preemployment stage based on the applicant’s current or past use of cannabis. For the purposes of this legislation “cannabis” is defined as “all parts of the plant Cannabis, whether growing or not, with a THC concentration greater than 0.3 percent on a dry weight basis during the growing cycle through harvest and usable cannabis. “Cannabis” does not include hemp or industrial hemp as defined in RCW 15.140.020, or seeds used for licensed hemp production under chapter 15.140 RCW.”[1]
Employers, including hospitals, are prohibited from discriminating against an individual in initial hiring for employment based upon:
- An individual’s use of cannabis off the job and away from the workplace; or
- An employer-required drug screening test that has found non-psychoactive cannabis metabolites in an applicant’s hair, blood, urine, or other bodily fluids.
The law does not:
- Prohibit an employer from basing initial hiring decisions on valid drug screenings, excluding screening for non-psychoactive cannabis metabolites;
- Apply to testing for controlled substances other than preemployment, such as post-accident testing or testing due to suspicion of impairment or being under the influence of alcohol, controlled substances, medications, or other substances; or
- Affect the rights or obligations of an employer to maintain a drug and alcohol free workplace;
The law does not preempt state or federal laws that require an applicant to be tested for controlled substances.
If the employer is receiving federal funding or federal licensing-related benefits or has entered into a federal contract, then the employer must abide by any federal drug testing requirements (including testing for cannabis) included in the funding agreement or contract for relevant employees. Hospitals should assess their obligations under federal and state laws and contracts.
The prohibition on preemployment drug testing for cannabis use does not apply to job applicants who are seeking:
- A position requiring a federal government background investigation or security clearance;
- Fire department and law enforcement, first responders, corrections, airline, or aerospace positions; or
- A safety sensitive position for which impairment while on the job would present a substantial risk of death (these safety sensitive positions must be identified by the employer prior to the applicant’s application for employment).
An employer may continue to use drug tests which detect a wide range of controlled substances, including cannabis, however cannabis related results cannot be provided to the employer.
WSHA’s 2023 New Law Implementation Guide
Please visit WSHA’s new law implementation guide online. The Government Affairs team is hard at work preparing resources and information on the high priority bills that passed in 2023 to help members implement the new laws, as well as links to resources such as this bulletin.
Background
In 2012, Washington state voters approved ballot measure number 502, which legalized adult-use of recreational cannabis in the state. Since its legalization, the state has adopted a regulatory approach to the use and sale of cannabis, authorizing state-licensed producers, and retailers. While adult marijuana use has been legalized in the state for over a decade, prior to this legislation, employers had been authorized to reject an applicant based on their prior or current use of cannabis. Cannabis use remains illegal under federal law.
Drug screening and testing for cannabis measures THC levels and its metabolites. Metabolites can remain in an individual’s system long after the effects of marijuana have worn off. Urine or hair tests have a detection window of anywhere from 1-90 days after an individual’s last cannabis use. Drug screenings and tests are unable to detect an individuals’ current cannabis impairment, this makes drawing a scientific conclusion on when an applicant last used cannabis impossible.
References
Senate Bill 5123 – Pre-employment cannabis legislation
Chapter 70.41 RCW – Hospital licensing and regulation
Chapter 49.44 RCW – Labor Regulations, violations and prohibited practices
RCW 69.50.101 – Definition of “cannabis”
PubMed Central – Chemistry, Metabolism and Toxicology of Cannabis: Clinical Implications
American Addiction Centers – How Long Does Marijuana (Weed) Stay in your System?
