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September 2022: District of Columbia Provides Employment Protections to Cannabis Users

30 Aug


Update Applicable to:
All employers in Washington D.C.

What happened?
On July 13, 2022, Washington, D.C. Mayor Muriel Bowser signed the “Cannabis Employment Protections Amendment Act of 2022” (D.C. Act 24-483) into law, joining the growing list of jurisdictions prohibiting most employers from taking adverse action (e.g., rejecting job applicants or terminating employees) for off-duty cannabis use.

What are the details?
Effective 60 days after the congressional review, the Act will make it unlawful for most employers to refuse to hire, terminate, or take other adverse employment action based on (1) an individual’s use of cannabis or status as a medical cannabis program patient or (2) the presence of cannabinoid metabolites in the individual’s bodily fluids in any drug test, absent “additional factors indicating impairment.”

On the latter point, an employer can take action against an employee for cannabis use if “the employee manifests specific articulable symptoms while working, or during the employee’s hours of work, that substantially decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position,” or if such “specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy workplace as required by District or federal occupational safety and health law.”

How employers must evaluate medical cannabis use:
The Act also amends the District of Columbia’s medical cannabis law to require most employers to treat a qualifying patient’s use of medical cannabis for a disability in the same manner as it would treat the legal use of other controlled substances prescribed by or taken under the supervision of licensed health care professional (subject to narrow exemptions). 

Certain positions are exempt.

These protections do not apply:

  • If the employee will work in a safety-sensitive position, which means a position, as designated by the employer, where it is reasonably foreseeable that if the employee performs the position’s routine tasks or duties while under the influence of drugs or alcohol, the employee will likely cause actual, immediate, and serious bodily injury or loss of life to self or others. The Act gives examples of positions that qualify, including certain security positions and positions requiring (1) regular or frequent operation of a motor vehicle or heavy or dangerous equipment or machinery, (2) regular or frequent work on an active construction site or occupational safety training, (3) regular or frequent work on or near power or gas utility lines or handling hazardous materials (as defined by District law), (4) the supervision of, or provision of routine care for, individuals who are unable to care for themselves and who live in an institutional or custodial environment, or (5) the administration of medications, the performance or supervision of surgeries, or the provision of other medical treatment requiring professional credentials.
  • If the employer is required to act under a federal statute, federal regulations, or a federal contract or funding agreement. As the Drug-Free Workplace Act does not require or even mention drug testing, government contractors must point to specific drug testing mandates to rely on this exemption.

This means pre-employment cannabis testing is prohibited, absent one of these narrow exceptions.

Employers can maintain a reasonable drug-free workplace policy that:

  • Requires post-accident or reasonable suspicion drug testing of all employees or random drug testing of safety-sensitive workers;
  • Is necessary to comply with federal law or a federal contract or funding agreement, if applicable to the employer; or
  • Prohibits impairment (as defined above) or the use, consumption, possession, storage, delivery, transfer, display, transportation, sale, purchase, or growing of cannabis at the employee’s place of employment, while performing work for the employer or during the employee’s hours of work.

Employers must provide employees:

  • Notice of their rights under the Act, which the Office of Human Rights will prepare;
  • Notice that an employee’s position has been designated as safety-sensitive (if applicable); and
  • The protocols for any drug and alcohol testing the employer performs.

Employers must provide this information to employees: (1) within 60 days after the date the Act becomes “applicable”; (2) on an annual basis after that (for incumbents); and (3) upon hire of a new employee.

The Act will not be “applicable” until its fiscal effect is included in an approved budget or July 13, 2023, whichever is later.

Aggrieved individuals can:

  • File a complaint with the Office of Human Rights;
  • Bring a private cause of action (recreational cannabis users must first exhaust their administrative remedies with an OHR complaint); and/or
  • File a complaint with the Attorney General.

If an employer is found to have violated the Act, it could face civil penalties, compensatory damages, lost wages, other equitable relief, and attorney’s fees and costs.

For more information, please see the links below:

Cannabis Employment Protections Amendment Act of 2022 (D.C. Act 24-483)

What do employers need to do?
Employers should review the links above and ensure not to discriminate against any employees who use cannabis recreationally.

This communication is intended solely for the purpose of conveying information. The present post might incorporate hyperlinks directing readers to websites managed by third-party entities. The inclusion of any links within this communication is meant to serve as points of reference and could encompass opinion articles from various law firms, articles from HR associations, official websites, news releases, and documents of government agencies, and other relevant third-party sources. Vensure has no authority over these external websites and bears no responsibility for their content. Furthermore, Vensure does not endorse the materials present on these websites. The contents of this communication should not be interpreted as legal advice or as a legal standpoint concerning specific facts or scenarios. Nor should it be deemed an exhaustive compilation of facts potentially pertinent to federal, state, or local laws. It is strongly advised that employers solicit legal guidance from an employment attorney when undertaking actions in response to any legal updates provided. This is due to the possibility of future alterations occurring in federal, state, and local laws, regulations, as well as the directives and guidelines issued by governing agencies. These changes may transpire at any given time, potentially rendering certain portions of the content within this update void or inaccurate.

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