More than a decade has passed since Washington legalized cannabis use. With the passage of SB 5123 in 2023, Washington addressed employment discrimination as a result of off-duty cannabis use. It is important to note that the new law excludes all employees subject to federal drug testing or who are in safety-sensitive occupations. The new state law took effect on January 1.
What does SB 5123 entail?
Any employer using drug testing may no longer use a test that identifies the non-psychoactive metabolites in cannabis, with notable exceptions.
What are the exceptions to the law?
SB 5123 carves out exceptions for first responders, including law enforcement officers, firefighters, and 911 dispatchers, as well as corrections officers or those who are responsible for the safety and security of others. Also excluded are those who are subject to federal drug and alcohol testing rules.
Is there a way to maintain a drug-free workplace and still comply with the law?
SB 5123 only applies to hiring, not all employment decisions. This is an important distinction for public sector. Summit Law Group reminds us that pre-employment and random testing by public sector employers can only be conducted for safety-sensitive personnel and those subject to U.S. DOT regulations.
This law does not preclude an employer from implementing policies to address all other instances of testing for non-DOT, non-safety-sensitive employees (i.e., reasonable suspicion and post-accident); therefore, employers can include testing for cannabis in these instances.
How does SB 5123 intersect with federal cannabis law?
Cannabis remains illegal under federal law. Federal law requires that drug and alcohol testing apply to certain positions where safety and security are critical. This bill does not preempt that.