Seattle, Wash. (January 23, 2024) – In the state of Washington, the legal trend has been laws favoring employees, often at the expense and burden of employers.
That trend continues in 2024 with the following new employee-favorable statutes and regulations.
Employers Cannot Reject a Job Applicant for Past Marijuana Use
Washington is an at-will state. Until 2024, employers had the right to reject a job applicant because the applicant admitted using marijuana (which has been legal since 2012) or tested positive for marijuana on a pre-employment drug test. A new law prohibits this practice because the Washington legislature concluded that marijuana's legalization "created a disconnect between prospective employees' legal activities and employers' hiring practices."
Starting in 2024, it is "unlawful discrimination" for an employer to reject a job applicant because the candidate previously used marijuana or tested positive for marijuana use on a pre-employment screening test.
The law, which is codified as RCW 49.44.240 under the chapter labeled "Prohibited Practices," does not impose a penalty for violations. This contrasts with other "Prohibited Practices" identified in RCW 49.44 that provide a penalty. See, e.g., RCW 49.44.135 (providing civil penalty for employer that requires lie-detector test as precondition of employment). Although the statute uses the term "unlawful discrimination," Washington law does not treat "unlawful discrimination" against marijuana users like other victims of discrimination, such as under the Washington Law Against Discrimination (the WLAD, as it's known, does not apply to RCW Chapter 49.44).
But Washington courts have been receptive to arguments by employees that statutory rights must have a remedy.
So, one can see a Washington court allowing claims under the flexible doctrine of "wrongful discharge in violation of public policy" (perhaps merely rephrased as a "wrongful refusal to hire in violation of public policy"). A claim under the elastic Washington State Consumer Protection Act seems possible, too.
But the law has its exceptions. It does not apply to all
employers. Law enforcement, first responders, those engaged in
particularly dangerous jobs, and those for whom testing is required
by federal law are exempt.
Nor does the law limit the employer's right to maintain a
drug-free workplace – employers can prohibit marijuana use
and possession at the workplace. It also permits employers to test
for marijuana use following an accident or if there is suspicion
that an employee is high at work.
The evil the legislation is intended to address, ultimately, is the belief by the legislature that employers discriminate against candidates who use marijuana. As the legislature concluded: "Many tests for cannabis show only the presence of nonpsychoactive cannabis metabolites from past cannabis use, including up to 30 days in the past, that have no correlation to an applicant's future job performance."
Washington to Have the Highest Minimum Wage in U.S. – and Some Cities Will Be Even Higher
Starting in January 2024, the minimum wage in Washington State shall increase to $16.28 – the highest wage in the country.
The minimum wage in certain cities, including Seattle and Tukwila, will increase even more, so be sure to speak with your legal advisor to ensure compliance with all requirements.
Changes to the State's Paid Sick Leave Law to Benefit Certain Construction Employees
In 2018, Washington enacted a paid sick-leave law to be funded and implemented by employers. (This is separate from the state-run leave-benefit program). Under the law, employees accrue one hour of paid sick time for every 40 hours worked but can't use it until day 90 of employment.
As of 2024, however, the rule changed for certain employees who work in the construction industry. If they separate from employment within the first 90 days, they must be paid their accrued but unused sick leave. Whether the construction workers have this right depends on whether they work in "Residential Building Construction" or "Nonresidential Building Construction." Only the latter are covered by the law, but the law includes not only construction workers, but non-exempt hourly administrative staff too.
Changes to Regulations Governing PTO Policies
The administrative agency empowered to enforce the state's paid-leave law – the State of Washington Department of Labor and Industries – has implemented new regulations addressing the obligations of employers who use a Paid-Time-Off program ("PTO") in lieu of relying on state's paid-leave law.
To begin, employers must disclose in writing that they have a PTO program that encompasses rights under the state leave law. And that program must be as generous to employees in all respects (i.e., accrual, compensation rates, carryover) as the paid-sick leave law. An employer cannot create a PTO program to circumvent the paid-sick leave law.
If a PTO program is used, the employer cannot force the employee to exhaust one form of leave before using another form of leave. But once all leave is exhausted, no further leave is required. If the employee uses all their PTO on vacations, for example, they are not entitled to paid sick leave if they unexpectedly get sick.
The employer must also track separately the employee's use of paid sick leave from vacation and other types of leave used by the employee.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
