A new law in Washington state protects job applicants from discrimination in hiring if they use cannabis outside of work. The recreational use of cannabis by people over 21 is now legal in Washington. The medical use of cannabis is also legal in Washington.
The law regarding testing of job applicants was adopted because lawmakers recognize that applicants may consume cannabis legally and might be refused employment because of a pre-employment drug test, which can detect cannabis consumed as long as 30 days before testing.
Most Washington employers are prohibited from refusing to hire qualified applicants who test positive for cannabis in a pre-employment drug test. There are a few exceptions for jobs in certain industries and positions in which safety is of special importance, such as:
- Positions that require a federal government background investigation or security clearance;
- Jobs in Washington law enforcement agencies, fire departments, fire protection districts, or regional fire protection service authorities;
- Other positions with first responders, e.g., 911 dispatchers with public or private emergency communication systems or those responsible for emergency medical services.
This list is not exhaustive. Other positions are excepted as well. A local attorney in Washington would be able to provide more information about exceptions.
Federal employee drug testing laws that require applicants for jobs to be tested for controlled substances, as under U.S. Department of Transportation regulations, are still in force. The new Washington law also does not restrict testing where applicants must be tested as a condition of employment in order to receive federal funding or benefits, or as required by a federal contract.
However, the fact that an employer has a contract with the federal government does not require testing of applicants or employees.
What Are the Rules for Testing Current Employees?
The new Washington law regarding legal cannabis use does not affect drug testing of applicants or employees for other substances. Employers may still engage in the following testing:
- Testing before hiring for the purpose of making hiring decisions based on the results of tests for drugs other than cannabis;
- To enforce policies to maintain drug- and alcohol-free workplaces (including obligations required by federal law or regulation);
- Testing for controlled substances and alcohol during employment. For example, employers may still test for cannabis after a workplace accident if the employer has a reasonable suspicion that an employee was under the influence of drugs or alcohol at the time of the accident;
- An employer may test for drugs as part of a random drug testing policy.
A drug test is a chemical analysis of a biological specimen, commonly a person’s blood, breath, urine, or hair. The test is used to detect evidence of the presence or absence of specified drugs in a person’s body. Major applications of drug testing by employers involve the detection of drugs that are still prohibited by law in Washington, such as cocaine, methamphetamine, and heroin.
In Washington, employers may test employees for the following controlled substances:
- Amphetamines,
- Cocaine;
- Phencyclidine (PCP);
- Methadone;
- Methaqualone;
- Opiates;
- Barbiturates;
- Benzodiazepines;
- Propoxyphene;
- The metabolites of these substances.
An employer might also test for alcohol intoxication through the use of blood alcohol content (BAC) tests of a person’s blood, breath, or urine.
The consequences of failing a drug test are going to depend on the employer’s drug testing policy and what consequences it provides for failing a test. The policy is likely to specify negative consequences that may include firing.
As for Washington State government employee drug-testing, the various departments of Washington state government have policies regarding drug testing within their departments. Some of them are quite extensive. For example, the Washington State Department of Transportation has a 55-page “Drug and Alcohol Program Guidebook.” The Department of Social and Health Services has a 12-page drug- and alcohol-free workplace policy.
So, Washington state government employees would want to consult their department’s policy regarding drug testing for guidance.
Can I Refuse a Drug Test at Work?
A person may refuse a drug test at work if the particular test is not allowed by law or by the employer’s own drug testing policy. However, in Washington state, most employer drug testing is allowed. As noted above, an employer cannot refuse to hire a person because they test positive for cannabis use, but they may still require pre-employment drug testing.
Virtually every state allows employers to require drug testing of job applicants. Washington allows this type of testing also. If a person tests positive, an employer may refuse to hire the applicant because they tested positive. The only exception is if the applicant tests positive for cannabis.
Some states limit the situations in which an employer may require testing of current employees. Washington law allows employers to engage in random testing and any other lawful type of workplace drug testing.
Of course, an employer may not physically force a person, either a job applicant or an employee, to take a drug test. However, while an applicant has a right to refuse a drug test, the employer has the right to refuse them a job for that reason. If it is a current employee who refuses a legitimate test, the employer may impose sanctions up to and including firing.
What Are the Consequences of Refusing to Take a Drug Test?
If an employee objects to drug testing, their best approach would be to get familiar with their employer’s drug-testing policy. They might be able to avoid any drug testing that is not done in compliance with the employer’s own stated policies. Otherwise, however, refusing to take a drug test at work could lead to negative consequences, including loss of one’s employment.
Are There Any Exceptions?
The federal Americans with Disabilities Act (ADA) does not prevent employers from enforcing drug-free workplace policies or otherwise testing employees for drug use. It does not offer any kind of protection to employees who are using illegal drugs.
However, the ADA does make it illegal for employers to engage in employment discrimination against recovering alcoholics and drug users who are already receiving treatment for their addiction.
Also, under the terms of the ADA:
- Employers are prohibited from firing, refusing to hire, or refusing to promote a person because they have a history of substance use;
- Employers are also prohibited from firing, refusing to hire, or refusing to promote employees because they are enrolled in a drug or alcohol rehabilitation program.
Employers who have drug-testing programs want to be careful not to focus on employees for testing because they look or act as though they are under the influence of drugs or alcohol. Many of the physical symptoms usually associated with alcohol and drug intoxication, e.g., slurred speech, disorientation, or a lack of coordination, can also be the result of a serious physical disability or medical condition.
People with disabilities or conditions that might mimic intoxication are protected by the ADA. Selective drug testing could lead to claims of discrimination.
Finally, employers should not ask employees about their legal prescription drug use in connection with any type of drug-testing process. Some state courts have ruled that requesting information of this kind constitutes a form of discrimination and violates the ADA.
Do I Need an Attorney if I Refuse to Take a Drug Test?
If you have refused a drug test at work, you want to contact a Washington discrimination lawyer as soon as possible. LegalMatch.com can connect you to an experienced lawyer who can review your employer’s policy and tell you what your rights are. Employment law matters can be complex, but a lawyer can provide you with the representation and guidance needed for your case.
If you have not been tested but are concerned about it, you also want to consult a Washington lawyer. Your lawyer can review your employer’s drug testing policy and tell you what rights you have under that policy.
