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Washington Senate passes bill to bar hiring discrimination for cannabis use

By Claire Withycombe, The Seattle Times
Published: February 23, 2023, 7:52am

OLYMPIA — Washington employers would be prohibited from refusing to hire a potential worker solely because of a drug test showing they had used cannabis under a bill that passed the state Senate on Wednesday.

Washington voters approved recreational marijuana in 2012 through Initiative 502. More than a decade later, though, as more states have moved to legalize the drug, Washington employers can still screen out applicants who use cannabis.

If Senate Bill 5123 becomes law, Washington would join several other states that have enacted laws shielding employees from workplace penalties for off-duty cannabis use. The bill passed the state Senate on a 28-21 vote Wednesday, sending it to the House for further consideration.

In 2019, Nevada became the first state to stop employers from rejecting an applicant because of a drug test showing cannabis use. Last year, California Gov. Gavin Newsom signed into law a bill barring discrimination in hiring, firing and other conditions of employment if a worker uses cannabis while off duty.

The Washington bill’s sponsor, Sen. Karen Keiser, D-Des Moines, introduced a similar proposal last year, but it didn’t get to the floor for a vote.

Washington’s bill only covers drug tests before hiring, Keiser said. An employer could still test you for cannabis once you have a job, and could still make a hiring decision based on a drug test that doesn’t include cannabis.

“If your employer wants to test you every week after you’re hired, they’re still able to do that,” Keiser said. “This is simply opening the front door of getting into a job. Because too many people who see that they have to take a drug test to even apply, don’t even apply.”

Certain jobs are excluded from the bill, including in the airline and aerospace industries and those requiring a federal background investigation or security clearance.

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Thanks to an amendment from Sen. Curtis King, R-Yakima, the bill also excludes professions where impairment on the job means “substantial risk of death.”

A central challenge in regulating cannabis use in the workplace is that a test that measures impairment from the drug is not yet available. That poses a problem especially for workers and employers who are subject to federal regulations, including through contracts with the federal government or because workers must have commercial driver’s licenses.

Burl Bryson, executive director of The Cannabis Alliance, told lawmakers in a public hearing Jan. 10 that potential candidates can consume cannabis legally “and still test positive for weeks later.”

“If the same approach were applied to alcohol, employers would refuse employment to anyone who enjoyed a beer or glass of wine on the weekend,” Bryson said.

“It simply doesn’t make sense to base an employment decision on that kind of unreliable outcome and test,” Keiser said on the Senate floor just before the vote Wednesday.

Employers could still screen workers for cannabis after an accident or if they suspect impairment on the job.

The bill had drawn some opposition from business lobbyists, who expressed worries about employers’ responsibility for safety problems in the workplace.

Bob Battles, general counsel and government affairs director for the Association of Washington Business, which has 7,000 members including major employers Boeing and Microsoft, said Wednesday the organization shifted to a more neutral position, citing changes clarifying that it covered only preemployment screening, as well as King’s amendment to exclude positions where impairment could be deadly.