The Washington Senate this week approved a bill that would protect cannabis users from pre-employment job discrimination. The measure, Senate Bill 5123, was passed by the state Senate on Wednesday by a vote of 28-21 and will now be considered by the Washington House of Representatives. 

Under the bill, employers would be barred from refusing to hire a job candidate based solely on the results of pre-employment screening for cannabis use. The legislation does not include protection for other substances, so screenings for other drugs would still be allowed during the hiring process.

“It comes down to discriminating against people who use cannabis,” state Senator Karen Keiser, the lead sponsor of the bill and the chair of the Senate Labor and Commerce Committee, said in a statement cited by online news site The Center Square. “For people using a legal substance, having a pre-employment test like this is just plain unfair, and we should stop it.”

“At a time when the number of unfilled positions is extremely high, we shouldn’t be limiting our workforce by deterring qualified job applicants,” she added. “This legislation opens the door for people who might otherwise not even apply for a position.”

The legislation does not apply to some jobs including positions in the airline and aerospace industries. The measure also does not apply to jobs that require a federal background check or security clearance.

While the bill protects potential employees from drug tests while applying for a job, Keiser noted that the bill does not prevent employers from subjecting their workers to drug screenings for weed during employment. Under the measure, companies will still be allowed to fire employees who test positive for cannabis in order to maintain a drug-free workplace. Employers could also subject employees to a drug test for cannabis use after a workplace accident or if they suspect a worker is impaired by cannabis while on the job.

“If your employer wants to test you every week after you’re hired, they’re still able to do that,” Keiser said. “This is simply opening the front door of getting into a job. Because too many people who see that they have to take a drug test to even apply, don’t even apply.”

Washington Legalized Recreational Pot In 2012

Washington legalized recreational marijuana in 2012 with the passage of Initiative 502, a ballot measure that was supported by nearly 56% of voters. But while the measure protected cannabis users from prosecution, the initiative did not include protections for workers who use weed off the job. 

Nevada became the first state to protect job applicants from pre-employment drug tests for cannabis in 2019. Since then, other states have also passed employment protection measures, including a California bill protecting workers from discrimination based on their use of marijuana while off the clock that was passed last year.

Cannabis advocates who support employment protections note that current drug screenings can only determine the presence of cannabis metabolites, which can remain in the system long after using marijuana. Burl Bryson, executive director of The Cannabis Alliance, told lawmakers at a public hearing last month that potential job candidates can consume cannabis legally “and still test positive … weeks later.”

“If the same approach were applied to alcohol, employers would refuse employment to anyone who enjoyed a beer or a glass of wine on the weekend,” said Bryson. “We all know that this is not a workable standard.”

“It simply doesn’t make sense to base an employment decision on that kind of unreliable outcome and test,” Keiser told her colleagues in the Senate before Wednesday’s vote.

Brian Fitzpatrick, CEO of the cannabis industry compliance platform Qredible, said that there are legitimate reasons for some employers to maintain a drug-free workplace. But he added that “exceptions need to be made, particularly for medical cannabis users, but also for responsible adult users.”

“There are policies that exist that govern not showing up for work intoxicated under the influence of alcohol, and cannabis should be no different,” Fitzpatrick wrote in an email to High Times. “Unlike alcohol, there is research suggesting that cannabis use does not significantly impair job performance, as such, employers should re-evaluate their policies regarding cannabis use to create a more equitable approach to cannabis users.”

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Cannabis sales in the state of Washington declined by about $120 million over the past year, according to a recent market analysis report, marking the first time regulated sales of pot have dropped in a decade. Retail sales of marijuana fell by more than 8% from July 2021 through June 2022, according to a report on the cannabis markets in Washington, California, Colorado and Oregon from cannabis data analysis firm Headset.

The drop in retail cannabis sales in Washington followed two years of strong growth, largely fueled by the boost in sales associated with the COVID-19 pandemic and the resulting shutdowns of many businesses deemed nonessential. Like many other states with legal cannabis, regulators in Washington state designated marijuana retailers as essential businesses, allowing them to remain open for business during lockdowns. 

“From March 2020 to March 2021, legacy cannabis markets saw drastic increases in growth,” Headset wrote. “In the beginning months of the pandemic for example, Colorado’s total adult-use sales grew by 63% from February to July 2020.” 

During the same period, average monthly sales in Colorado grew by 25.8% compared to the year before, while in Oregon monthly sales grew by 36.6%. Brian Smith, a spokesperson for the Washington State Liquor and Cannabis Board, said that last year’s drop in sales is the result of post-pandemic economic conditions.

“What you’re seeing as a ‘dip’ is really sales returning to normal growth as more people returned to in-person work,” Smith said in a statement quoted by The Seattle Times.

The data showed a decrease in the frequency of visits consumers made to cannabis retailers and the amount of money they spent each time. Headset’s analysis showed that the average transaction recorded at licensed cannabis retailers in Washington dropped by almost three dollars, from $34.14 in July of last year to $31.41 in 2022.

Aaron Smith, co-founder and chief executive officer of the National Cannabis Industry Association, said that a decline in retail cannabis sales has also been documented in other states that have legalized sales of recreational marijuana. The Headset report showed that regulated sales of marijuana declined by nearly 10% in Oregon, while Colorado saw a drop in sales of more than 11%.

“This is not isolated to Washington state’s cannabis industry,” Smith told The Center Square via email. “We’re seeing similar trends across the country.”

High Taxes Hindering The Legal Cannabis Industry

Like many cannabis industry observers, Smith believes that retail marijuana sales are declining because taxes on regulated weed can be excessive compared to other industries, making cannabis available on the illicit market more attractive to consumers already facing higher prices on consumer goods because of international supply chain challenges.

“I believe the primary factor at play is inflationary pressure driving more consumers to procure cannabis in the underground, unregulated market,” Smith said. “Heavy taxes and regulatory burdens on our industry make it very difficult to compete with underground cannabis providers who pay no taxes at all and have no need to follow the state’s rules and regulations for producing and selling cannabis.”

Brian Fitzpatrick, chairman and CEO of Qredible, a cloud-based compliance platform for the cannabis industry, notes that taxes on cannabis in Washington are among the highest in the industry, totaling more than 46% in taxes when the state’s excise and sales taxes are combined.

“My fear is that this constant pressure from the significant taxes will cause companies to cut corners and cost in areas of quality and compliance just to compete with the illicit market,” Fitzpatrick wrote in an email to High Times. “The dangers of the illicit market are clear – they lack safety and regulation standards. If the government wants to promote safe and compliant usage, it should reconsider some relief on the excise taxes.”

The Washington CannaBusiness Association agrees that high taxes could be hindering the growth of the legal cannabis industry.

“On the margins, this high rate may be pushing some consumers to purchase their cannabis products from the unregulated, untaxed, illicit market,” the industry group said in a statement.

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