Home Critical Drug-Testing Update starting January 1, for CA and WA

Critical Drug-Testing Update starting January 1, for CA and WA

December 20, 2023

We are writing today to make you aware of two new laws that will affect drug testing in the states of

  • California (California AB 2188) and
  • Washington (Washington SB 5123).


Below are links to both bills:



Both laws take effect January 1, 2024.  You only need to continue to read if you test NON-DOT employees in Washington State or the State of California.

Please be aware that these laws do not affect Department of Transportation (DOT) Employees or California Public Utilities Commission (PUC) Employees. 

Both laws restrict some or all drug screening utilizing non-psychoactive cannabis metabolite testing, which is the case with urine testing most frequently used by employers.  The goal of these new laws is for employers to test for recent use or the current presence of marijuana in an employee’s body, not something they consumed days or weeks ago.

Some oral fluid testing – BUT NOT ALL – screen for the parent drug  and not the non-psychoactive cannabis metabolite.  This means oral fluid screening   may keep you in compliance with both laws, but you must verify with your drug testing vendor that their methodology meets the required standards.

As recommended by Jackson Lewis law firm on November 9, 2023, employers should ask these two things of their drug testing vendors:

  1. Review vendor provided scientific data verifying that the oral fluid (or breathalyzer, etc.) testing in question does not test for non-psychoactive metabolites.
  2. If the employer is challenged in a lawsuit, will the drug testing provider be willing to stand and testify in support of this fact in court?

More about the Washington law. Only pre-employment drug screening is affected by the new law.  In essence, when pre-employment screening your NON-DOT employees, you will have to utilize a form of testing that does not look for any non-psychoactive metabolites. For applications of testing other than pre-employment (i.e. post-accident, reasonable suspicion), you may test NON-DOT employees in Washington applying the testing you have already been using or the type of testing you will now need to apply to pre-employment testing of NON-DOT positions.

Who is exempt* from the Washington law?

  • DOT employees
  • Employers who have federal contracts and employees need a federal background check or security clearance.
  • Law enforcement personnel and fire fighters
  • Other first responders
  • Correction officers
  • Airline or aerospace industry personnel
  • Any safety sensitive position for which impairment could present a substantial risk of death

*If you intend to rely on an exception, you are required to identify those positions prior to the applicant’s application for employment.

For more information about the Washington law: https://legiscan.com/WA/text/SB5123/id/2810060


More about California’s law. You will need to utilize a form of testing for ALL applications of testing that does not look for any non-psychoactive components of marijuana.

Who is exempt from this California Law:

  • DOT and CA PUC employees
  • Employees working in construction and building trades
  • Employees who need a federal background investigation or security clearance


For more information about the California law: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2188


What do you need to do to remain compliant with these two new laws?

For positions that are not exempt as described above, if you perform NON-DOT and NON-CA PUC testing in the state of California, or NON-DOT pre-employment testing in the state of Washington, you need to consider taking the following actions:

  • Contact a state-specific attorney for guidance in this arena to investigate direction and protection.  This is anticipated to be a highly litigious terrain until everything is understood and tested in the courts.  Given that, you will want expert advice and protection.
  • Regarding marijuana for the first QTR of 2024 (after which the employer should review the status of the situation and determine policy direction), for positions not exempted in the lists above, consider not testing for marijuana;
    • in California for all NON-DOT employee testing, and,
    • in Washington as it applies to NON-DOT pre-employment testing.
  • Contact your drug testing provider for California and/or Washington state and verify – by asking to review scientific data yourself – that they have testing which satisfies the state requirements and that, if needed, they will testify on your behalf to confirm the testing is compliant if a lawsuit results from the use of the provider’s testing operation.
  • Using the criteria above, contact Workplace Screening Intelligence (WSI) to explore having oral fluid added to your account for NON-DOT pre-employment drug screening in the State of Washington and all testing other than DOT or CA PUC in the State of California.  You can contact WSI Support Team at 844-573-8378 or Support@Workplacescreening.com


NOTE:  Don’t forget to adjust your policy and give fair notice to employees about any changes:  If you have NON-DOT testing in these two states, you need to amend your policy to address the change you make to compliant testing methodology. Working Partners® has experience in multi-state policies. Give us a call if you have any questions. 614-337-8200