Washington does not have a broad statute that regulates workplace drug testing across the board the way a handful of other states do. What it has instead is a narrower, more targeted rule aimed specifically at pre employment cannabis screening. That rule, created by Senate Bill 5123 and codified at RCW 49.44.240, changed how many Washington employers can use a positive cannabis result in a hiring decision, while leaving post hire testing, safety sensitive positions, and federally regulated jobs largely untouched. This guide walks through what the statute actually says, who is carved out, how it interacts with Washington's workers' compensation system through the Department of Labor and Industries, and where federal transportation rules still control regardless of state law.
This is a summary of primary sources, not legal advice. Washington employers building or revising a testing policy, especially one that touches hiring, safety sensitive job classifications, or a workers' compensation claim, should confirm current requirements with a licensed Washington employment attorney before acting.
What RCW 49.44.240 actually says
RCW 49.44.240, titled "Discrimination based upon cannabis use, exceptions," makes it unlawful for an employer to discriminate against a person in the initial hiring for employment based on either the person's use of cannabis off the job and away from the workplace, or an employer required drug screening test that found nonpsychoactive cannabis metabolites in the applicant's hair, blood, urine, or other bodily fluids. The full codified text, including every exception, is published by the state legislature at RCW 49.44.240. The statute was added by Chapter 359, Laws of 2023, commonly referred to by its bill number as SB 5123, which the legislature's own bill tracking page shows passed both chambers, was signed by the governor on May 9 of that year, and took effect January 1, 2024. Employers can review the bill's legislative history directly at the SB 5123 bill summary page.
The legislature's stated intent, included in the session law notes, was that many cannabis metabolite tests detect only past, nonpsychoactive use, sometimes going back weeks, with no correlation to an applicant's ability to do the job. The statute targets that specific gap between a positive pre employment screen and actual current impairment, rather than regulating drug testing generally.
What the hiring rule does not restrict
RCW 49.44.240 is narrow by design. It applies to the initial hiring decision. It does not restrict an employer's ability to test after hire for reasons other than pre employment screening, including post accident testing or testing based on a suspicion of impairment. The statute's own text states that it does not apply to testing for controlled substances other than preemployment testing, such as post accident testing or testing because of a suspicion of impairment. It also does not prohibit an employer from basing a hiring decision on a scientifically valid drug screen that does not test for nonpsychoactive cannabis metabolites in the first place, and it does not affect an employer's right or obligation to otherwise maintain a drug and alcohol free workplace.
The statute also allows a specific workaround for employers who still want a broad pre employment panel. Under subsection (4)(b), an employer may require an applicant to be tested for a spectrum of controlled substances that includes cannabis, as long as the cannabis specific results are not provided to the employer. In practice this means the lab or third party administrator can screen for cannabis alongside other drugs but withhold that one result from the hiring manager, while still reporting results for other substances normally.
Who is exempt from the hiring restriction
RCW 49.44.240(3) lists specific categories of applicants the hiring restriction does not cover. The statute also states in subsection (4)(a) that it does not preempt state or federal laws that require an applicant to be tested for controlled substances, including as a condition of federal funding, federal licensing related benefits, or a federal contract.
| Applicant or position type | Covered by the RCW 49.44.240 hiring restriction |
|---|---|
| General private sector hiring, no federal testing mandate | Yes, restriction generally applies |
| Position requiring a federal government background investigation or security clearance | No, excluded |
| Position with a general authority Washington law enforcement agency | No, excluded |
| Position with a fire department, fire protection district, or regional fire protection service authority | No, excluded |
| First responder or 911 dispatcher position not otherwise listed | No, excluded |
| Corrections officer at a jail, detention facility, or the department of corrections | No, excluded |
| Position in the airline or aerospace industries | No, excluded |
| Safety sensitive position where impairment presents a substantial risk of death, identified by the employer before the applicant applies | No, excluded |
| Position where federal or state law otherwise requires testing, including federal funding or contract conditions | No, excluded |
The safety sensitive carve out is employer defined, but the statute requires the employer to identify the position as safety sensitive prior to the applicant's application, not after a positive result comes back. Employers relying on this exception should document the safety sensitive designation in the job posting or job description in advance, not retroactively.
No general Washington drug testing statute otherwise
Outside of RCW 49.44.240, Washington does not have a comprehensive state statute that separately licenses, restricts, or mandates private employer drug testing programs the way some states do. That means for post hire testing, random testing, reasonable suspicion testing, and post accident testing outside the hiring context, Washington employers generally operate under common law principles, any applicable collective bargaining agreement, and federal law rather than a dedicated state testing statute. Employers should not assume the absence of a broader statute means testing is unregulated. Documentation, consistency, and how a positive result is handled, including routing any presumptive positive for a prescribed medication through a medical review officer before taking action, still matter for defensibility.
Workers' compensation and L&I context
Washington's workers' compensation system is administered by the Department of Labor and Industries, commonly called L&I. L&I sets and enforces the state's occupational safety and health rules and administers the workers' compensation claims process for most employers in the state. General information on the agency's workers' compensation and workplace safety programs is published at L&I's insurance and workers' compensation portal. How a positive post accident drug test interacts with a specific workers' compensation claim, including any effect on benefits, depends on the facts of the individual claim and current L&I claims guidance, and that treatment varies. Employers with a pending claim involving a positive test should work directly with their claims manager or L&I rather than assume a specific outcome, and should confirm any drug free workplace premium or discount program details directly with L&I or their insurer since availability and requirements can change.
Federal DOT preemption still applies
Nothing in RCW 49.44.240 changes federal drug and alcohol testing requirements for positions covered by United States Department of Transportation rules, including many commercial driver, aviation, and transit positions. Federal regulation controls those positions regardless of state cannabis law, and cannabis remains a prohibited substance under that framework. The controlling federal testing procedures are published at 49 CFR Part 40 in the Electronic Code of Federal Regulations. A Washington employer running both DOT covered and non DOT covered positions needs separate, clearly labeled policy language for each group, since the RCW 49.44.240 hiring protection does not extend to a DOT covered applicant.
Building a compliant Washington policy
- Confirm which of your open positions are federally regulated, safety sensitive, or otherwise exempt under RCW 49.44.240(3) before you post the job, and document that designation in writing.
- For non exempt hiring, either drop nonpsychoactive cannabis metabolites from the pre employment panel, or use a testing structure where cannabis results are screened but withheld from the hiring decision as allowed under subsection (4)(b).
- Keep post hire testing, including reasonable suspicion and post accident testing, governed by a separate, clearly written policy, since RCW 49.44.240 does not restrict those situations.
- Route any presumptive positive tied to a valid prescription through a medical review officer before any hiring or employment action, and keep prescription documentation apart from the file used for the decision.
- For DOT covered roles, maintain a separate policy that tracks 49 CFR Part 40 in full, since the state hiring protection does not apply to those positions.
- If a positive test is connected to a workers' compensation claim, coordinate directly with L&I or your claims administrator rather than assuming a standard outcome, since claim specific treatment varies.
American Screening Corporation supplies drug test cups, dip cards, and oral fluid devices that Washington employers use to build a documented, consistent program across both exempt and non exempt positions. Employers setting up or updating a panel can review drug test cups configured for pre employment and post hire testing. For a broader look at how state rules differ before building a multi state policy, see Workplace Drug Testing Laws by State: What Employers Need to Map. For how testing intersects with insurance costs, see Workers Comp Drug Testing Premium Discounts: State Programs Explained.
Frequently asked questions
Can a Washington employer still test job applicants for cannabis?
An employer can still run a cannabis screen as part of a broader panel, but under RCW 49.44.240 it generally cannot use a positive result for nonpsychoactive cannabis metabolites to deny initial hiring, unless the position falls into one of the statute's listed exceptions, such as a safety sensitive role identified in advance, a federally regulated position, or a public safety position listed in the statute.
Does RCW 49.44.240 stop an employer from testing employees after they are hired?
No. The statute's text specifically states it does not apply to testing for controlled substances other than preemployment testing, such as post accident testing or testing based on a suspicion of impairment. Post hire testing is handled under the employer's own policy rather than this statute.
Are safety sensitive positions exempt from the cannabis hiring rule?
Yes, if the employer identifies the position as safety sensitive, meaning impairment while working presents a substantial risk of death, before the applicant applies. The designation needs to be made in advance and documented, not added after a positive result.
Do DOT drug testing rules still apply to Washington commercial drivers?
Yes. Federal rules under 49 CFR Part 40 govern DOT covered positions regardless of Washington's cannabis hiring law, and RCW 49.44.240 does not extend its hiring protection to positions covered by federal testing requirements.
Does Washington have a general state law regulating all employer drug testing?
Not a broad one. Outside of the cannabis specific hiring rule in RCW 49.44.240, Washington does not have a comprehensive statute governing private employer drug testing generally, so post hire testing programs are shaped mainly by employer policy, any collective bargaining agreement, and applicable federal law rather than a dedicated state testing statute.
How does a positive drug test affect a Washington workers' compensation claim?
That depends on the specific claim, and treatment varies. Washington's Department of Labor and Industries administers the state's workers' compensation system and claims process, and an employer with a claim involving a positive test should work directly with L&I or the claims administrator rather than assume a fixed outcome.
This article is general information about Washington law as of the date published, not legal advice. Washington employers should consult a licensed Washington employment attorney before adopting or enforcing a drug testing policy, especially where hiring decisions, safety sensitive designations, or workers' compensation claims are involved.
