Update applicable to:
All D.C. employers and multi-state employers who employee
What happened?
The District of Columbia (D.C.) has enacted the Cannabis Employment Protections Amendment Act of 2022 (C.E.P.A.A.), which introduces new protections for private employees who engage in off-duty marijuana use. This development diverges from federal law, which still categorizes marijuana as a controlled substance, making both possession and use of marijuana illegal.
What are the details?
Effective from July 13, 2023, the C.E.P.A.A. aims to provide clarity and guidelines regarding marijuana use and employment.
Under the provisions of the C.E.P.A.A., employers are prohibited from taking adverse personnel actions against individuals for off-premises marijuana or cannabis use during non-work hours. However, employers are permitted to take action related to such use if the employee holds a safety-sensitive position, federal contracts or statutes prohibit marijuana use, or if the employee used or possessed marijuana at the employer’s premises or during work hours.
Regarding drug testing, the presence of cannabinoid metabolites in employer-required or requested drug tests may be used to justify adverse action if the employee is impaired by cannabis use at the workplace or during work hours. The definition of cannabis impairment includes specific, observable symptoms that substantially affect an employee’s performance or interfere with maintaining a safe and healthy work environment. Consequently, the availability of pre-employment drug testing for many private employers in the District of Columbia may be altered.
The C.E.P.A.A. introduces the concept of safety-sensitive positions and requires employers to provide notice to their employees regarding the new protections within 60 days of July 13 or upon hiring. Safety-sensitive positions encompass roles where an employee’s impairment due to drug or alcohol use could pose a direct threat of bodily harm or loss of life to themselves or others. Examples of safety-sensitive positions include security services involving weapons, regular operation of motor vehicles or dangerous machinery, work on active construction sites, and supervision of individuals in institutional or custodial environments.
Employees are granted the right to report alleged noncompliance with the C.E.P.A.A. to the D.C. Office of Human Rights within one year. Notably, there are different administrative requirements for recreational and medical marijuana users under the new law. Recreational marijuana users must exhaust administrative remedies before pursuing a private cause of action, whereas medical marijuana patients are not required to exhaust administrative remedies but cannot initiate a private cause of action if they have lodged an administrative complaint with the D.C. Office of Human Rights alleging the same noncompliance.
Employers found to have violated the C.E.P.A.A. may face penalties imposed by the director of the D.C. Office of Human Rights. These penalties include civil fines, payment of lost wages, training, and reasonable attorneys’ fees and costs. The severity of civil fines depends on the number of employees, ranging from up to $1,000 per violation for businesses with 1–30 employees to up to $5,000 per violation for those with over 100 employees. In private causes of action, courts can order the payment of civil fines, lost wages, compensatory damages, equitable relief, and reasonable attorneys’ fees and costs.
For more information, please see the links below:
D.C. Cannabis Employment Protections Amendment Act of 2022 (C.E.P.A.A.)
What do employers need to do?
Employers should amend their workplace designations and policies in accordance with the changes mandated by the D.C. Cannabis Employment Protections Amendment Act. Jackson Lewis attorneys are happy to assist in navigating the changes required to remain compliant with new laws in the District of Columbia.
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