D.C. Works to Protect Employees Who Use Marijuana

The use of cannabis across the United States has become less controversial. Laws have been shifting from prohibition to medical purposes to recreational use. And it appears that widespread acceptance of cannabis use is becoming a trend. Some jurisdictions are even starting to enact employment protections for cannabis users.

One example is Washington, D.C.’s “Cannabis Employment Protections Act of 2022”. Mayor Muriel Bowser signed the Act on July 13, 2022. The new law will prohibit employers from refusing to hire, terminate employment, suspend, fail to promote, demote or penalize an individual based on:

• Individual cannabis use.
• Medical cannabis as a patient.
• The presence of cannabinoid metabolites in a drug test specimen if there are no other impairment indicators according to the law.

Under the new law, employers must notify employees of their rights, whether they have designated the employee’s position as “safety sensitive,” and protocols for any drug or alcohol testing the employer performs. Employers should give this notice to each new employee upon hire and current employees within 60 days of the law’s enactment. Employers should provide the required information on an annual basis as well.

Room for Employer Action

Although this new law does restrict employers in some respects, there are areas where the action is allowed. Employers are not in violation of the law if they make certain employment decisions based on cannabis use if:

• The role is “safety sensitive,” as defined in the law.
• A federal statute, regulation, contract, or funding agreement requires it.
• The employee used, consumed, possessed, stored, delivered, transferred, displayed, transported, sold, purchased, or grew cannabis at the workplace or while on the job, unless otherwise permitted by Washington DC law.
• Notwithstanding Washington DC law, if the employee is impaired by marijuana use while working. The law defines impairment as manifesting:

“…specific articulable symptoms while working… that substantially decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligations to provide a safe and healthy workplace as required by D.C. or federal law.”

This law intends to protect employees. However, it also spells out what it is not meant to do. The regulations should not be seen as a requirement for employers to permit or accommodate the use, consumption, possession, storage, delivery, transfer, display, transportation, sale, purchase, or growing of cannabis at the employee’s workplace or while on the job. Additionally, the law does not create or eliminate causes of action for any person against an employer for the injury, loss, or liability, eliminate causes of action otherwise available, or create a safe harbor or provide employers immunity from a lawsuit.

The new law also isn’t meant to prohibit employers from adopting a reasonable drug-free workplace or employment policy that:

• Requires post-accident or reasonable suspicion drug testing of employees. Policies can also require drug testing employees in “safety sensitive” positions.
• Is necessary to comply with federal law, including requirements from federal contracts or funding agreements.
• Prohibits the use, consumption, possession, storage, delivery, transfer, display, transportation, sale, purchase, or growing of cannabis in the workplace or on the job.
• Prohibits employee impairment from cannabis use while on the job or during work hours.

While D.C.’s new law is not law yet, it’s well on the way. The signed law was sent to the U.S. House of Representatives and U.S. Senate for 60 days before becoming effective. During this period, Congress may enact a joint resolution disapproving the Act. A joint resolution prevents the law from enactment if the President approves it. But if the President supports no joint resolution, the Bill finally becomes a Law and is assigned a law number.

Employers in Washington, D.C., may want to review the Act to prepare for its enactment. Similar laws could affect others outside the D.C. area. Consult your legal team to understand how this might require a change to your current drug testing policy.