Both California and Washington have passed legislation that will impact their pre-employment testing policies once the new year rolls around. Pre-employment drug testing is governed by a patchwork of federal, state, and local regulations, in addition to varying policies adopted by private and governmental employers. Given this variability, understanding the requirements surrounding pre-employment drug testing can be challenging. This article provides an overview of the changes made to California and Washington’s state laws, which will be effective on January 1, 2024.
Both laws are related to testing for delta-9-tetrahydrocannabinol (THC), which is the primary psychoactive agent in cannabis. Currently, most employers use drug tests that present findings for a nonpsychoactive agent called THCA. THC is found in greater concentrations in drug tests that use saliva specimens.
What is Covered in California’s Assembly Bill 2188 (AB 2188)?
AB 2188 was passed in California and signed by the Governor on September 18, 2022. This act amends the current law governing pre-employment drug testing, the Fair Employment and Housing Act (FEHA), to make cannabis users a protected class in the state of California. This change makes it illegal for most employers to discriminate against a cannabis user in relation to hiring, terminating, or basing other employment decisions on their cannabis use if the decision is based upon either:
- The person’s use of cannabis off the job and away from the workplace.
- A pre-employment drug test is required by the employer that has found nonpsychoactive cannabis metabolites in hair, blood, urine, or other bodily fluids.
It should be noted that this exclusion is for cannabis only. An employer may discriminate in hiring, terminating, or making other employment decisions based on pre-employment drug screening that has results for drugs other than nonpsychoactive cannabis metabolites.
This law also makes exceptions for certain industries, including:
- Employees in the building and construction trades
- Applicants or employees hired for positions that require a federal government background investigation or security clearance meeting the Department of Defense’s regulations or equivalent regulations applicable to other agencies.
- Applicants and employees are required to be tested under state or federal laws and regulations or as a condition of the employer receiving federal funding or federal licensing benefits or entering into a federal contract.
What is Covered in Washington’s Senate Bill 5123?
Washington’s law is similar to California’s in that it also takes effect on January 1, 2024, and it prohibits employers from discriminating against a person for cannabis use. However, this law is exclusive to discrimination at the initial hiring for employment if the discrimination is based upon their use of cannabis off the job and away from the workplace or an employer-required pre-employment drug test that has found nonpsychoactive cannabis metabolites in the hair, blood, urine, or other bodily fluids of the person.
This law does not prohibit the employer from making initial hiring decisions based on drug testing methods that do not screen for nonpsychoactive cannabis metabolites. As such, employers in this state can reject job candidates for cannabis use if the employer uses the appropriate drug test. Employers in Washington also still have the right to maintain a drug-free workplace and policy and to test any current employees. The Legislature’s primary intent with SB 5123 was to prevent the restriction of job opportunities based on an applicant’s past use of cannabis.
Also similar to AB 2188, Washington’s SB 5123 contains industry-based exclusions, including:
- Positions that require a federal government background check or security clearance
- Law enforcement, fire department, or other first responder positions
- Corrections officers
- Positions in the airline or aerospace industries
- Applicants who will work in a safety-sensitive position for which impairment presents a substantial risk of death. However, employers using this exclusion must notify the applicant that the position is deemed safety-sensitive before their application.
Washington’s SB 5123 does not preempt any federal or state laws that require testing for controlled substances.
These laws will impact many employers in the states of Washington and California in just a few short months. In the months leading up to the change, employers will want to review their drug testing policies with their legal department as part of their pre-employment background checks, consult with their drug testing laboratories to determine if current methodologies are compliant, and update any public information about their hiring practices.
Complying with all applicable hiring laws, pre-employment background checks, and drug screening laws can be a confusing patchwork of information. To learn more about how we can help you maintain legal compliance with these new laws, contact USAFact today!
USAFact Global Screening Services provides employers with comprehensive background and criminal checks that comply with federal and local laws. By helping you reduce high-risk applicants through our custom-tailored screening solutions, USAFact helps you to create a safer and more productive work environment and a foundation for future success.
This article is not intended as legal advice. It is for informational use only. We always recommend that you consult with your legal advisors before making any changes to hiring and screening practices.