Job applicants who use cannabis can face discrimination in the workforce from employers, even in states where recreational and medical cannabis use is legal. A new law in Washington state will protect people who find themselves in this situation.

The bill, passed by state lawmakers on April 20, prohibits employers from discriminating against job applicants based on cannabis consumption. Washington is one of the first states, along with Colorado, to legalize recreational marijuana.

“You shouldn’t be penalized in job applications for enjoying a legal substance at home,” the official Washington State Senate Twitter feed said after passage of the bill. They added that the bill “will protect employees from hiring discrimination due to cannabis use outside the workplace.”

Job Applicant Discrimination an Issue Nationwide

The issue of discrimination against job applicants who use legal cannabis has become an issue as legalization has swept the country. Without protection by federal law – which still considers cannabis an illegal drug – workers have relied on states and cities passing laws to protect them.

It’s been a patchwork process. In 2022, a new law in Philadelphia prohibited any business within the city from making passage of a marijuana drug test a pre-condition for employment. However, the new law has many exceptions, impacting thousands of workers. Jobs where employers can still require drug testing for cannabis include the following.

• Police officers or other law enforcement positions
• Jobs that require a commercial driver’s license
• Any job that requires supervision or care of children, medical patients, the disabled or other vulnerable individuals
• Any job where the employee can significantly impact the health or safety of other employees or members of the public
• Jobs where drug testing is required by federal or state statute, regulation or order, including organizations that contract with or get a grant from the federal government
• Jobs under a  valid collective bargaining agreement between employer and employees that addresses pre-employment drug testing of job applicants

On this same issue, guidance from the New York Labor Department instructed employers not to test for marijuana use if employers are using cannabis during non-work hours. However, the guidance had many exceptions, including cases where an employee “manifests specific articulable symptoms of impairment” or if any employee brings cannabis onto the business property.

Limits to the New Washington State Law

The new law in Washington state also has its limitations. First and foremost, it only applies to job applicants who use legal cannabis. Companies are still free, under state law, to drug test current employees for cannabis use.

The new law also does not apply to jobs in the aerospace industry or those that require a federal background check or security clearance. It also does not cover those who apply for jobs as firefighters, first responders, correctional officers, or in law enforcement.

The bill itself points out one of the main problems with drug testing for cannabis: The tests can still detect cannabis in the bloodstream long after use and long after the affects of THC have worn off. In some cases, traces of THC are detected in the bloodstream or urine weeks after use. It’s especially become an issue in the trucking industry.