We work with organizations from all over the country to provide comprehensive pre-employment background check services. Based in Buffalo New York, we have built a reputation for going the extra mile for our clients, and we take pride in helping companies make better hiring decisions. Pre-employment screening helps to ensure that your prospective employees are who they say they are, and part of any successful pre-employment screening program is drug screening.
Each state holds its own criminal marijuana laws, which have loosened over the last 5 years or so. As marijuana becomes more and more “legal,” it begs the question, Can I test an employee for marijuana?
Today on the blog we wanted to touch on one state’s recent bill, which changes the way an employer can test for marijuana. This particular example highlights what the state of Washington pushed through legislation, but it can provide a trend for what other states could follow up with.
Senate Bill 5132
Just recently passed, Senate Bill 5132 provides broad protections for adult users of marijuana and imposes limitations on employment drug testing, specifically related to cannabis.
Let’s take a look at what this means for employers in Washington, which could look similar for other states in the near future.
Lawmakers in Washington worked to reconcile a “disconnect between prospective employees’ legal activities and employers’ hiring practices,” when comparing cannabis use to alcohol consumption. SB 5132 identifies that drug tests may report the presence of “nonpsychoactive cannabis metabolites from past cannabis use, including up to 30 days in the past, that have no correlation to an applicant’s future job performance.” It also goes on to note,
“Applicants are much less likely to test positive or be disqualified for the presence of alcohol on a pre-employment screening test compared with cannabis, despite both being legally allowed controlled substances.”
What Impact Does SB 5132 Have on Employers?
Employers should be cautious. SB 5132 protects employees from adverse reactions solely based on marijuana usage, if it occurs outside of work and shows no signs of impairing performance. SB 5132 does not completely ban or prohibit pre-employment marijuana drug testing, but employers may not require a drug test indicating “nonpsychoactive cannabis metabolites” in hair, blood, urine, or bodily fluid.
Employers may require drug tests that assess a range of controlled substances (including cannabis) IF the results provided to the employer do not report findings associated with past cannabis use.
Though SB 5132 does limit pre-employment marijuana testing, employers may still be interested in knowing if an employee has used cannabis recently or identifying psychoactive cannabis metabolites for specific positions or safety concerns. In the event of an accident or incident where drug use may be a factor, employers can conduct drug testing. If there is reasonable suspicion of an employee being impaired on the job, drug testing can be administered to ensure workplace safety.
There are some exceptions. This bill does not apply to jobs that involve federal security clearance or background investigations. It does not apply to law enforcement, fire department, first responders, airline industries, corrections officers, or in safety-sensitive positions where impairment presents a “substantial risk of death.”
Review Your Drug Testing Policies Regularly
No matter your industry, changes to marijuana drug testing for employment should provide you with enough evidence that it may be time to review your current drug testing policy. As some states have already evolved and amended pre-employment drug testing regulations regarding marijuana, it can be assumed wherever you reside, your state will probably have new legislation coming. Navigating all the red tape at the local, state, and federal levels can get confusing, so it’s best you partner with a trusted background check provider that knows the regulations and compliance behind workplace drug testing.
To get out in front, employers can take a hard look at their existing policies, consider identifying safety-sensitive positions that may require drug testing, and educate themselves and their employees on the changes to marijuana law. If you have any questions regarding your current drug testing policy, please don’t hesitate to reach out. We can help you better understand pre-employment marijuana drug testing in your state, and steer you in the right direction toward protecting yourself, your employees, and your company’s reputation.