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Will Washington follow California's lead & make marijuana drug testing more difficult for employers?



Marijuana is slowly turning into a legal drug throughout the United States. In fact, there are only three states in the US that have not legalized some version of THC/cannabis. With "legal marijuana" becoming more prevalent, lawmakers are starting to focus on employers who drug screen. For example, California has created the bill AB-2188[1] efffective 2024, which focuses on restricting employers who use workplace drug testing, especially regarding cannabis. This bill states that drug test results show only that "nonpsychoative" methcannibis is in the donor's system, which, according to them, has no correlation to actual impairment on the job. Unfortunately, this oversimplifies the metabolism process and misrepresents the science behind drug screens. A recent study has shown that THC, the "nonpsychoactive metabolite," is detectable in urine within 6 to 7 hours after consumption of marijuana, and, depending on the method of consumption and other metabolic factors, marijuana-related impairment can last between 3 to 10 hours. Therefore, an impairment sometimes will correlate with the detection of THC in the consumer's system. As of now Washington State has the following rules for cannabis use in the work place:

  • Employers may establish drug-free workplace policies.

  • Nothing in the law requires employer accommodation of workplace, on-site medical marijuana use.

  • Affirmed in a case decision, an employer acting per their drug policy post-accident was found not to have to accommodate regardless of the medical marijuana status of the employee.

  • Washington’s recreational marijuana use, Initiative 502, does not regulate marijuana in the workplace or drug testing until future studies/recommendations have been completed.

  • Employers may establish drug-free workplace policies.

  • Employers may refuse to hire applicants or fire employees for testing positive for marijuana on a drug test, even if the use was off duty.

  • Affirmed in case decision, the medical marijuana law does not prohibit an employer from hiring/terminating at will employees for any reason or no reason at all.

  • Smoking is permitted except where smoking tobacco is prohibited.

  • No public consumption or “in view of public.”

Consumption for either driver or passenger is prohibited in a motor vehicle. Consumers can carry in their vehicles, but it must be in a sealed container or in the trunk. It is illegal to transport any open package or container of marijuana or marijuana-infused products. The big question is will Washington follow California's lead and make cannabis testing for employers more difficult to conduct? Only time will tell. Best Practices Regardless of what's going on legislatively, best practices continue to be: 1) keep up-to-date on your drug-free workplace policies, making sure they are legally defensible, and consistently followed; 2) stay vigilant for signs of impairment such as altered coordination, behavior and/or speech; 3) give us a call if you have questions about when to test; and 4) be consistent, always! Resources: https://www.currentconsultinggroup.com/true-or-false-drug-testing-for-marijuana-is-about-to-become-illegal-in-california/ https://www.nationaldrugscreening.com/marijuana-considerations/washington/ https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?

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