As more states and cities make marijuana legal in some format, we can expect drug testing laws to change, and they are. It should not be a surprise that California has already put a new law in place as of January 1, 2024.

Bill AB 2188 states that it is “unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace, except for preemployment drug screening, as specified, or upon an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.”

Positions that fall under federal drug testing requirements are exempt from this legislation as are some positions in the building and construction trades.

The state of Washington also has a new law on drug testing, SB 5123. While this bill does not prohibit drug screening for employment purposes, it does prohibit employers from making employment decisions based on:

• “the person's use of cannabis off the job and away from the workplace; or
• an employer-required drug screening test that identifies non-psychoactive cannabis metabolites in the person's hair, blood, urine, or other bodily fluids.”

There are some exceptions to this law too. Employers still have the right to test post-accident or based on reasonable suspicion of an employee’s impairment. As always, it is important to ensure that the staff responsible for handling potential impairment is well trained in how to recognize possible impairment and for maintaining proper documentation of the situation. As with the California law referenced above, federal drug testing requirements are exempt from this legislation. It also does not apply to:

• Washington law enforcement agency
• fire departments and agencies
• first responder services
• corrections officers and agencies
• airline and aerospace industries
• safety sensitive positions

Employers should review the laws for more detailed and specific information and consult with their legal counsel as appropriate. While some employers either have or are considering removing marijuana from drug testing, the impact on safety should be thoroughly thought out before taking this step.

Sources: lawfilesext.leg.wa.gov; leginfo.legislature.ca.gov; Quest Diagnostics