Reminder: the new pot law is now in effect – Under a new law, employers are blocked from conducting drug tests for cannabis when making hiring decisions.
ESB 5123 essentially makes it illegal for employers not to hire someone based solely on a pre-employment drug screen that indicates positive for THC and went into effect on January 1st, 2024 — meaning that this only applies to pre-employment screening. There is no enforcement agency for the law as it is instituted, meaning that, should an employee feel that the law was broken, they would need to file a lawsuit (private right of action).
The Department of Labor and Industries still has requirements for employers to provide a workplace free from drug use. WAC 296-800-11025 prohibits alcohol and narcotics from the workplace, as well as employees under the influence of alcohol and narcotics. The phrase under the influence is important context here, as that is a federally defined term meaning that the worker has a level of drug present in their system to trigger a positive.
There is an exemption for safety-sensitive positions, but only if the employer has communicated in job ads and hiring documents that it is a safety-sensitive position. For clarity, the bill defines safety-sensitive as “any position for which impairment while working presents a substantial risk of death.”
There are also exemptions for any employees who fall under the DOT or federal drug-testing regulations or are required to have federal job clearance — such as those on federally funded projects or who receive federal funding.
Employers should review their existing drug-testing policies in conjunction with any third-party administrator being used, as well as legal counsel. Please also note that while there are innovations in drug-testing technology, none presently exist that can provide immediate results and indicate a person’s present usage of cannabis while meeting all federal and DOT testing parameters. Innovations are coming quickly in this regard, however, and more labs are hurrying to answer the call for oral testing capabilities.
Here is an insightful article from our industry partners, Washington Drug Free Business, on how to best prepare for the January 1st effective date.
AGC of Washington’s Safety Services department is happy to help employers navigate this new law and provide referrals as well. Reach out for support here.