Washington Protects Employee Off-Duty Marijuana Use Under SB 5123

What Changed

Washington enacted Senate Bill 5123 (SB 5123), which protects employees and job applicants from discrimination based on their lawful, off-duty use of marijuana. Signed by Governor Inslee on May 9, 2023, the law takes effect January 1, 2024.

Key provisions include:

• Employers are prohibited from making hiring decisions based on an applicant's off-the-job cannabis use

• Employers cannot use pre-employment drug tests that screen for nonpsychoactive cannabis metabolites (THC-COOH) as the basis for adverse hiring decisions

• Employers may still use scientifically valid drug screening methods that do not screen for nonpsychoactive metabolites

• If an employer uses a test that detects marijuana alongside other substances, the cannabis-related results must not be provided to the employer

Who Is Affected

Most Washington employers are affected, with notable exceptions:

• Covered: All private employers in Washington making hiring decisions

• Exempt: Safety-sensitive positions, first responders, positions subject to federal drug testing requirements, and positions requiring a federal government background investigation or security clearance

• Employers may still enforce policies prohibiting on-the-job impairment and may conduct testing when they suspect an employee is under the influence at work

• Post-accident testing remains permissible

Where It Applies

Washington statewide.

When It Takes Effect

January 1, 2024.

Why It Matters

Washington joins a growing number of states that are restricting employer authority to test for and make employment decisions based on off-duty marijuana use. This law fundamentally changes pre-employment drug testing in Washington — employers cannot simply run a standard 5-panel or 10-panel drug test and use a positive marijuana result to deny employment.

The distinction between nonpsychoactive metabolites (which can remain in the body for weeks after use) and active impairment is central to the law. Traditional urine tests detect metabolites, not impairment — meaning a positive result does not indicate the applicant was impaired at the time of the test.

The Humareso Take

This law forces a real conversation about what your drug testing policy is actually trying to accomplish. If the goal is workplace safety, then testing for nonpsychoactive metabolites that can linger for weeks after off-duty use does not serve that purpose. Washington is pushing employers to modernize their testing approaches, and we think that is the right direction. If you operate in Washington, review your pre-employment testing protocols now — you have until January 1, 2024 to make the switch to compliant methods.

Recommended Action Steps

1. Review your pre-employment drug testing policy to determine if it screens for nonpsychoactive cannabis metabolites.

2. Transition to compliant testing methods that do not screen for nonpsychoactive metabolites, or ensure cannabis results are not disclosed to hiring decision-makers.

3. Determine if any positions qualify for an exemption (safety-sensitive, federal requirements, etc.) and document the basis for continued testing.

4. Update your employee handbook to reflect the new protections for off-duty cannabis use.

5. Train hiring managers to understand that positive pre-employment marijuana results cannot be used as a basis for adverse hiring decisions (unless an exemption applies).

6. Contact your Humareso representative for help updating your drug testing policy and identifying exempt positions.