Pre-employment job discrimination is an ongoing concern for medical cannabis patients and recreational consumers across the country. The Washington Senate approved a bill Wednesday, Feb. 22, prohibiting employers from refusing to hire someone based on cannabis use outside of work. 

The bill (ESSB 5123) would bar employers from “discriminating against a person in hiring if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace.”

Further, employers cannot refuse to hire an applicant if cannabinoids are identified in hair, blood, urine, or other bodily fluids.

Employers can still test for the presence of controlled substances, including cannabis, while the employee is working. Employers maintain the right to enforce a drug and alcohol free workplace. 

Federal employers are exempt from the bill, as are positions requiring high-level security clearance. It does not apply to the airline or aerospace industries. It also does not apply to positions that are safety-oriented for which on-the-job impairment presents a risk of death.

Even in legalized states, many employers require job applicants to test negative for the presence of cannabis before they can be considered for a job. Current tests for cannabis do not indicate when the substance was consumed and are therefore a poor measure of impairment. 

The staff summary of public testimony on the original bill noted, “Cannabis metabolites are in the body for weeks, which is different from alcohol and other drugs. The status quo currently discriminates against medical cannabis patients.”

Burl Bryson, executive director of The Cannabis Alliance, spoke with legislators in January, stating job candidates could use cannabis during non-work hours and still test positive weeks later.

“If the same approach were applied to alcohol, employers would refuse employment to anyone who enjoyed a beer or a glass of wine on the weekend.” Bryson added, “We all know that this is not a workable standard.”

The bill does not protect employees from drug screenings for cannabis while they are employed. Employers would still be permitted to fire employees who test positive for cannabis use after a workplace accident. 

Nevada and California passed similar measures to protect job applicants in 2019 and 2022, respectively. Though Washington legalized adult-use cannabis in 2012, Initiative 502 did not contain language to protect job seekers from discrimination.

Senate Bill 5123 is now being considered by the Washington House of Representatives.