The District of Columbia legalized cannabis for medical purposes in 2010 and began allowing individuals to use the drug recreationally in 2015. Last month, on July 13, 2022, Washington, D.C. Mayor Muriel Bowser , signed theCannabis Employment Protection Amendment Act, 2022(DC Act 24-483), joining the growing list of jurisdictions prohibiting most employers from taking adverse action (for example, rejecting job applicants or firing employees) for off-premises cannabis use. working hours. The bill must go through a period of review by Congress before becoming law.
About the Law
What employers cannot do:
The law will make it illegal for most employers to refuse to hire, fire, or take other adverse employment action because of (1) an individual’s cannabis use or status as a medical cannabis program or (2) the presence of cannabinoid metabolites in the individual’s bodily fluids in any drug test, in the absence of “additional factors indicating deficiency.” On this last point, an employer can take action against an employee for cannabis use if “the employee manifests specific articulable symptoms while on the job, or during the employee’s working hours, that decrease or significantly decrease the employee’s performance of the duties or tasks of the employee’s workstation”, or whether these “specific articulate symptoms interfere with the employer’s obligation to provide a safe and healthy workplace, as required federal or district occupational safety and health law”.
How employers should assess the use of medical cannabis:
The law also amends the District of Columbia’s Medical Cannabis Act to require most employers to treat an eligible patient’s medical cannabis use for a disability the same way it would treat lawful use. other controlled substances prescribed by or taken under the supervision of a licensed healthcare professional (subject to narrow exemptions).
Some positions are exempt:
These protections do not apply:
- If the employee will work in a safety-sensitive position, that is, a position, as designated by the employer, where it is reasonably foreseeable that if the employee performs the routine duties or functions of the position under influence of drugs or alcohol, the employee will likely result in actual, immediate and serious bodily injury or loss of life to self or others. The Act provides examples of eligible positions, including certain security positions and positions requiring (1) regular or frequent operation of a motor vehicle or heavy or dangerous equipment or machinery, (2) work regular or frequent work on an active construction site or work safety training, (3) regular or frequent work on or near power or gas lines or handling hazardous materials (as defined by district law), (4) supervising or providing routine care to persons unable to care for themselves and living in an institutional or prison environment, or (5) administering medication, performing or supervising surgical operations or the provision of other medical treatments requiring professional titles.
- If the employer is required to act under a federal law, federal regulation, contract or federal funding agreement. Since the Drug-Free Workplace Act does not require or even mention drug testing, government contractors will need to state specific drug testing warrants to avail themselves of this exemption.
All of this means that pre-employment cannabis testing is prohibited, absent one of these rare exceptions.
Employers can maintain a reasonable drug-free workplace policy that:
- Requires drug testing after an accident or reasonable suspicion of all employees or random drug testing for safety-sensitive workers;
- is necessary to comply with federal law or a federal contract or funding agreement, if applicable to the employer; Where
- Prohibited Impairment (as defined above) or the use, consumption, possession, storage, delivery, transfer, display, transportation, sale, purchase or cultivation of cannabis at the employee’s workplace, while working for the employer or during the employee’s working hours.
Employers must provide employees:
- Notice of their rights under the law, which will be prepared by the Human Rights Office;
- Note that an employee’s position has been designated as Security Critical (if applicable); and
- Protocols for any drug and alcohol testing conducted by the employer.
Employers must provide this information to employees: (1) within 60 days of the date the Act becomes “applicable”; (2) on an annual basis thereafter (for holders); and (3) when hiring a new employee.
The law will not be “enforceable” until its fiscal effect is included in an approved budget or July 13, 2023, whichever is later.
Injured persons can:
- File a complaint with the Human Rights Office;
- Initiate a private cause of action (recreational cannabis users must first exhaust their administrative remedies with a complaint to the OHR); and or
- File a complaint with the Attorney General.
If an employer is found to have violated the law, they could face civil penalties, as well as compensatory damages, lost wages, other equitable relief, and professional fees and attorney fees.
Next steps for employers
The District of Columbia joins the growing list of jurisdictions, making it harder for employers to maintain a drug-free workplace and drug-testing policy, especially in the context of pre-employment testing. For example, the New York Department of Labor recently released “Frequently Asked Questionswhich take the position that pre-employment cannabis testing is prohibited except in very specific situations. Moreover, most philadelphia cream employers are now prohibited from requiring potential employees to be tested for the presence of cannabis as a condition of employment.
We expect this trend to continue. And with most Americans supporting legalization at the federal level, employers are starting to consider whether to change their approach to an increasingly popular drug that is legal for medical or recreational use in most states. This rapidly changing legal landscape presents new challenges for employers, especially multi-state employers. Employers must balance compliance with conflicting federal, state, and local laws, maintaining a safe work environment, and protecting the privacy of applicants and employees along with other legal rights.
In the meantime, employers with locations or employees in the District of Columbia should consider reassessing their workplace drug testing policies and practices to ensure they comply with the new law.