BOP NEWSLETTER • December 2023

Effective January 1, 2024, Off-Duty Use of Marijuana is Excluded from Hiring Decisions in Washington

Recognizing that Marijuana has been legal in WA since 2012, the new law aims to prevent restricting job opportunities to applicants due to their past use of cannabis, which should now be treated more like alcohol.

As of the effective date, Washington employers will no longer be allowed to use cannabis use as a basis for employment. This includes not being able to use any positive pre-hire drug test that finds an applicant to have “nonpsychoactive cannabis metabolites” in their hair, blood, urine, or other bodily fluids.

Notably, current drug tests cannot distinguish between psychoactive metabolites and nonpsychoactive metabolites; therefore, if new tests cannot do this as of January 1, 2024, then employers will be prohibited from testing for marijuana on pre-employment drug tests.

The law does not apply to applicants seeking:

• Positions requiring a federal government background investigation or security clearance;
• Certain law enforcement positions;
• Certain fire department positions;
• First responders (including 911 dispatchers) positions;
• Corrections officers positions;
• Positions in the airline or aerospace industries;
• Safety-sensitive positions for which impairment while working presents a substantial risk of death. Such safety-sensitive positions must be identified by the employer prior to the applicant’s application for employment.

The law also “does not preempt state or federal laws requiring an applicant to be tested for controlled substances.” This includes laws requiring testing, or a way that testing is to be performed, “as a condition of employment, receiving federal funding or federal licensing–related benefits, or as required by a federal contract.”

Employers still may drug test for marijuana on tests other than pre-employment, such as post-accident and reasonable suspicion. Additionally, employers still may test for other drugs.

Effective January 1, 2024, New California Law Will Assume Retaliation for Certain Employer Actions

Current law prohibits employers from discharging or threatening to discharge, demoting, suspending or otherwise subjecting an employee to adverse or discriminatory action because the employee has filed a claim alleging a labor violation with the Division of Labor Standards Enforcement. Current law also prohibits such retaliation against an employee for filing a claim alleging a violation of the state equal pay law.

Senate Bill 497, signed by Governor Newsom on October 8, creates a rebuttable presumption in favor of the employee’s claim if an employer engages in any prohibited actions within 90 days of these protected activities, unless the employer can prove otherwise.

The amendments also clarify that the $10,000 penalty for violating the state’s whistleblower anti-retaliation provisions is to be assessed per employee for each violation and is to be paid to the employees who were retaliated against.

Effective January 1, 2024, Inquiries About Applicant Cannabis Use Banned in California

Once the new law is in effect, it will be unlawful under the Fair Employment and Housing Act (FEHA) to request from an applicant for employment information relating to the applicant’s prior use of cannabis and to discriminate against a job applicant based on information regarding prior use of cannabis that is learned from criminal history.

There are some exceptions for state or federal laws requiring an applicant to be tested for controlled substances.

As a reminder, Assembly Bill 2188 also goes into effect January 1, 2024. For more information, please review one of our previous newsletters addressing this topic by clicking here.

Maine and New York Ban “Captive Audience Meetings”

Captive audience meetings are defined as forcing employees to listen to political, religious, or anti-union employer views during work time.

The Maine legislature passed 26 MRSA 600-B on June 6, which was signed into law by the governor on July 11.

On June 10, New York passed Senate Bill S4982 to amend New York Labor Law 201-d, which had already prohibited discrimination on the basis of an individual’s political activities outside of working hours and other legal recreational activities.

Both laws prohibit all captive audience meetings and forced communications regarding “political” matters, which are defined to include any decision to join or support a labor organization.