Understanding the New Drug Testing Laws in WA and CA
Washington was one of the first states to legalize recreational marijuana in the United States so it’s no surprise that they are a trailblazer for cannabis advocacy and making new laws to protect cannabis users. As of January 1st, 2024 a new law was enacted to protect discrimination against citizens through pre-employment testing. This exciting law is a step in the right direction but it isn’t a golden ticket for cannabis smokers. In this article we’ll discuss what bill 5123 means for employees and employers.
Since 2012, cannabis has been legalized for recreational and personal use in the state of Washington. Over the years, the state has recognized a disconnect between companies and their prospective employees that partake in legal activities outside of work or prior to employment. Current drug screening techniques look for non-psychoactive cannabis metabolites which are the chemicals that are leftover from our body after breaking down THC. Since THC binds to fat cells, it can take anywhere from 7-90 days (detox times depend on metabolism, diet, lifestyle, frequency of use, type of consumption, etc) to process out of your system. Since drug tests can find use from months ago, it is not representative of a person's current marijuana habits or their future employment performance which is why states like California and Washington have decided to protect prospective employees. These protections won’t allow companies to base hiring decisions from pre employment drug screenings that test for marijuana.
There are also limitations and exceptions to this law, that maintain protection for the employers and the type of workplace they’re conducting. This law does not mean that companies can’t maintain a drug free workplace, conduct random testing, or testing under suspicion of impairment, it simply won’t be part of the interviewing process. This law does not apply to people who work in hospitals, emergency medical services, firefighters, police or correctional officers, the aerospace industry, or any job in which impairment has a high probability of leading to death. This law does not apply to companies who have contracts or get funding from federal entities, people in these positions will still need to undergo pre employment marijuana screening. Companies can still request tests that test for marijuana, such as 5 or 10 panel tests, as long as the results for cannabis are omitted. I spoke with a local Washington drug testing facility who said that the wording of this bill is poor and loose, she said that some facilities will give these results to the employer after being hired, although it is unclear if this is a legal practice since the test was conducted prior to employment. It is anticipated that amendments will be made to this bill once there’s enough public comments through committee hearings and reports.
Legislatures are trying to level the field between cannabis and alcohol since they believe that both legal substances should be treated in the same manner. It’s important to maintain a safe working environment but prior cannabis use is not indicative of future job performance or individual cannabis habits. Many employers in these states have omitted cannabis testing altogether while some are required due to their federal ties. Regardless, it’s clear that state governments and employers are changing the way they view cannabis consumption outside of the workplace. Federal legalization or declassification from the Controlled Substances Act can usher in a new set of regulations where most companies will no longer be required or able to test for cannabis due to its legal status or medical privacy laws.
California is one of the most progressive states in terms of cannabis laws and reform. They were the first state to legalize medical marijuana back in 1996 and amongst the first 10 states to legalize recreational. Since then, California has been implementing bills to minimize penalties for those who possess and use cannabis. State governor Gavin Newsom recently passed a bill that prohibited discrimination in the workplace over cannabis use during off duty times. This means that people who legally use cannabis outside of working hours were permitted to do so under certain circumstances. As with every law, there are exemptions to protect the well being and safety of the general public and abide by federal regulations. Under this bill, employers were no longer allowed to test for non psychoactive cannabis metabolites via urine or hair follicle since these tests do not reveal recent use. However, employers are allowed to conduct other tests to judge impairment if suspected.
One of these tests is done over the phone or through a tablet, they measure cognitive ability and psychomotor function which is then compared to their baseline. While this test is noninvasive, it does not provide context or an explanation for the impairment, things like fatigue, stress, general distractions, or other non drug related impairment can occur without identification. This could cause unnecessary hardship if someone was having a rough or off day as they could be suspected for drug use on the job. The wording of this new law prohibits the employers from testing for marijuana metabolites but allows testing for the psychoactive molecule THC. This has led companies to implement special breathalyzers that supposedly pick up on THC within the past couple hours of use. These devices are new and have been criticized by scientists for their inaccuracy. Cannabis researchers from the University of Colorado Boulder have claimed these types of devices are not reliable and cannot distinguish between recent and past marijuana use. They acknowledge that this type of technology is doable but more research and development is needed to make a legitimate device with consistent and reliable results. Employers and advocates have praised these kinds of devices in the workplace and appreciate the alternative to classic urine or hair tests. While this isn’t a perfect solution, it still allows workers to utilize weed unlike any other state. This law applies to most private companies but does not apply to construction workers, positions requiring a federal background check, positions that have federal contracts or in other states that do require drug screening. Unlike Washington, nurses and doctors are allowed to use cannabis when they are off the job, the first state to allow medical professionals to do so. This is a huge step for marijuana activists as they recognize these positions are very high stress environments that could benefit from the medicinal use of cannabis.
Photo by Curtis Adams: https://www.pexels.com/photo/multi-drug-screen-test-and-kit-boxes-3474084/