Summary of differences between federal and state regulations
Effective January 1, 2024, an employer may not take action based on a positive pre-employment test for cannabis if the test finds an applicant to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids. The law prohibits discrimination against applicants for off-duty marijuana use.
Employers may use drug tests that assess a range of controlled substances, including cannabis, if the test results provided to the employer do not relate to past cannabis use.
An employer may use a scientifically valid drug screening for cannabis that does not screen for nonpsychoactive cannabis metabolites. However, there are currently no tests that can distinguish between psychoactive cannabis metabolites and nonpsychoactive metabolites. Oral fluid, or saliva, tests can detect recent drug use and can identify the presence of psychoactive cannabis metabolites shortly after cannabis is used. It us unclear whether they would detect only nonpsychoactive metabolites, however.
The marijuana testing restriction does not apply to:
- A position requiring a federal government background investigation or security clearance
- A position with a general authority Washington law enforcement agency
- A position with a fire department, fire protection district, or regional fire protection service authority
- A position as a first responder, including a dispatcher position with a public or private 911 emergency communications system or position responsible for the provision of emergency medical services
- A position as a corrections officer with a jail, detention facility, or the department of corrections
- A position in the airline or aerospace industries
- A safety-sensitive position for which impairment while working presents a substantial risk of death. (These positions must be identified by the employer prior to the applicant’s application for employment)
Washington's law does not preempt state or federal laws requiring an applicant to be tested for controlled substances.
Post-accident and reasonable suspicion tests for cannabis are allowed.
Washington’s unemployment compensation law provides that alcoholism does not constitute a defense to disqualification from benefits due to misconduct.
State agencies can test specific employees in safety-sensitive positions based on reasonable suspicion, which must be stated in writing. The agency must have a comprehensive written policy.
Washington Department of Labor and Industries
Washington Revised Code Title 50 §50.20.060.
Washington Administrative Code Title 356, §356-46-125
Under the Improve Tracking of Workplace Injuries and Illnesses final rule, the Occupational Safety and Health Administration (OSHA) prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness. Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.
Drug testing rules
U.S. Department of Transportation
U.S. Department of Labor
DOT drug testing rules
49 CFR Part 40
49 CFR Part 382
Drug-Free Workplace Act of 1988
United States Code at 41 U.S.C. 81
Improve Tracking of Workplace Injuries and Illnesses -- Employee’s right to report injuries and illnesses free from retaliation