Cannabis Use and Employment Law in Washington State

Mar 15, 2024 | Employment Law, Smith + Malek

Cannabis use laws are worth tracking, especially if you are an employer in a state that has legalized medical and/or recreational marijuana.

The 1986 federal law issued under Ronald Regan – Executive Order 12564 – has not changed and still applies to federal employees, federal contractors, or active military personnel, who can be fired for failing a drug test. Marijuana is still listed as a Schedule I drug under the Controlled Substances Act, along with heroin, LSD, mescaline, MDMA, and ecstasy. 

As of January 2024, 29 states have legalized medical marijuana and seven others have legalized recreational marijuana. This has created new considerations for employment law, which must address the consequences of the new state laws. 

 

Cannabis Use and Employment Law in Washington State

A heavily covered California bill, Cal. Gov. Code § 12954, was passed into law to limit discrimination in hiring based on cannabis use in 2023 and took effect on January 1, 2024. A similar law was passed in Washington, affecting employers. 

As of January 1, 2024, Washington state employers cannot reject an applicant due to cannabis use during the pre-hiring process. Under RCW § 49.44.240(1)(b), employers commit discrimination if the initial hiring decisions are 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. There are exceptions for federal employees, first responders, and any employee involved with incarceration. 

The floor vote on February 22, 2023, noted that this law is meant to put the use of cannabis on the same level as alcohol use. Just like alcohol, an employer may require testing for “safety sensitive” job positions. The employer is required to make the applicant aware of the positions that are defined as safety sensitive. This law only affects pre-employment. 

 

Restricted Use: Pre-Employment vs. Post-Hiring 

In the floor debate, the metabolite drug testing was of concern to Democrat Senator Karen Keiser from Washington’s 33rd District. She argues that cannabis remains testable in ways that alcohol is not. It serves as a discrimination for those who use cannabis in Washington state, which is legal for both recreational and medicinal use. The weaponizing of the test is effectual discrimination. 

Republican Senator Curtis King from Washington’s 14th District emphasized that this is only for the pre-employment process. The employer may maintain restrictions on post-hiring restrictions under the law’s exceptions. 

 

State and Federal Cannabis Compliance 

This law does not limit an employer’s right to create a drug-free work environment. It pertains strictly to the hiring process. 

A Washington State employer should evaluate the applicants they will test for cannabis for safety sensitive positions only, and make note of their intent to test in the job posting for such positions. It is recommended that Washington employers also update their employee handbooks and hiring materials with their drug and alcohol testing policies to ensure compliance with RCW § 49.44.240.

Employers in Washington state can contact Smith + Malek to stay up-to-date and ensure your practices follow state laws.