Cannabis in the Workplace FAQs
This page provides answers to some of the common and frequently asked questions we have received regarding cannabis (marijuana) law as it relates to local government employers and employees in Washington State.
For more information on cannabis regulation generally, see our page on Cannabis Regulation.
New legislation: Effective January 1, 2024, ESSB 5123 prohibits pre-employment drug testing for cannabis except for certain circumstances. For more information, see our FAQ below on employer cannabis testing.
Can employers prohibit cannabis use during work hours?
Yes, similar to alcohol, employers may regulate use or impacts of cannabis use in the workplace. RCW 69.50.445 prohibits personal use of cannabis "in view of the general public or in a public place." In addition, employers may have workplace policies prohibiting cannabis use or being under the influence of cannabis while working.
Can employers continue to test for cannabis?
Until December 31, 2023, employers are permitted to conduct pre-employment drug testing for cannabis. However, effective January 1, 2024, pre-employment drug testing for cannabis is prohibited by ESSB 5123, except for certain circumstances, including applicants for positions in law enforcement and fire departments and for safety sensitive positions for which impairment while working presents a substantial risk of death. (The local government must identify these safety sensitive positions prior to the applicant’s application for employment.) If the local government has entered into a contract with the federal government or receives federal funding and that contract or agreement requires testing for cannabis, then the local government must comply with the contract terms and perform the testing on relevant applicants.
Similar to alcohol, employers may require drug testing (including cannabis) of current employees, may impose discipline for policy violations, and may prohibit use in the workplace. Indeed, since cannabis remains illegal under federal law, institutions (including local governments) that receive federal funds are still required to follow the federal Drug-Free Workplace Act, including its testing program requirements. Employers should make sure that their personnel policies are up to date and include reference to legalized cannabis. Employers should consult with their city, agency, or other legal representatives.
How does the law affect CDL holders?
Commercial Driver License (CDL) holders are regulated by the state's Department of Licensing (DOL), which follows federal regulations. Where federal Drug-Free Workplace Act and U.S. Department of Transportation (DOT) standards apply, there is zero tolerance for cannabis use, including medicinal use.
What is the legal limit of THC for blood tests?
In Washington State five nanograms per milliliter (5 ng/ml) is the legal THC limit for driving impairment as set forth in RCW 46.61.502(1)(b) and RCW 46.61.506. This is the per se level of impairment for someone under the influence of cannabis as measured by a blood test designed to detect "active metabolites." State v. Fraser (2022) upheld the 5ng/ml legal limit in state law.
CDL holders are regulated by the DOL, which follows federal regulations. RCW 46.25.120 provides that “any measurable amount of THC concentration” results in disqualification of a driver with a CDL. See also, DOT Rule 49 CFR Part 40 Section 40.87.
What about off-duty cannabis consumption?
Washington public employers have a legal basis to discipline or discharge employees who test positive for cannabis if such action is consistent with their respective contracts, policies, and past disciplinary actions. However, to date there is no further legislation or case law on the issue of whether discharge for off-duty recreational cannabis use violates public policy. See below for reference to Roe v. TeleTech Customer Care Mgmt (2011) and medicinal cannabis.
What about medical cannabis use in the workplace?
There is not a legal right to use medical cannabis in the workplace. An employer may have a policy that requires all new employees to have a negative drug test result even when employees are prescribed medical cannabis. See, for example, Roe v. TeleTech Customer Care Mgmt (2011), in which the court held the state Medical Use of Marijuana Act (MUMA) did not protect employees from discharge for medicinal cannabis use. The plaintiff was authorized to use cannabis medicinally but had her job offer rescinded after a positive drug test.
- U.S. Substance Abuse and Mental Health Services Administration: Federal Contractors and Grantees - Drug-Free Workplace Programs – Discusses requirements that apply to agencies receiving a federal contract of $100,000 or more, or a federal grant of any size.
- Washington State Liquor and Cannabis Board – Provides additional FAQs, fact sheets, and other useful information.