DC Employment Protections for Cannabis Users to Go Into Effect in July 2023
The D.C. Cannabis Protections Amendment Act of 2022 became law in October 2022, after it was signed by Mayor Bowser on July 13, 2022. According to the specific language of the act, provisions could only be delayed up to one year from the date of such signature. As such, employers should expect the Act to be in full force and effect by July 2023.
The Act specifically cites its purpose to be:
To prohibit employers from firing, failing to hire, or taking other personnel actions against an individual for use of cannabis, participation in the District's or another state's medical cannabis program, or failure to pass an employer-required or requested cannabis drug test unless the position is designated safety sensitive or for other enumerated reasons and to authorize enforcement of Title I by the Office of Human Rights and the Attorney General and through a private right of action; to amend the District of Columbia Human Rights Act to clarify that employers must treat a medical cannabis program patient's use of medical cannabis to treat a disability in the same manner as it would treat the legal use of a controlled substance; to amend the District of Columbia Government Comprehensive Merit Personnel Act of 1978 to make conforming amendments; to amend the Department of Corrections Employee Mandatory Drug and Alcohol Testing Act of 1996 to make conforming amendments; and to delay applicability of certain provisions until at least one year after the Mayor's approval.
In sum, the Act prohibits employers from firing, failing to hire, or taking other adverse actions against employees for legal recreational cannabis use, participation in a medical cannabis program, or for failing a cannabis drug test, with some exceptions.
For example, the law does not apply to “safety-sensitive” positions if the employer designates the positions as such. “Safety-sensitive” positions are defined under the Act as an employment position, “in which it is reasonably foreseeable that if the employee performs the position's routine duties or tasks while under the influence of drugs or alcohol, the person would likely cause actual, immediate, and serious bodily injury or loss of life to self or others.”
Specific examples (not exhaustive) include:
(A) The provision of security services, such as police, special police, and security officers, or the custodianship, handling, or use of weapons, including firearms;
(B) Regular or frequent operation of a motor vehicle, heavy or dangerous equipment, or heavy or dangerous machinery;
(C) Regular or frequent work on an active construction site or occupational safety training;
(D) Regular or frequent work on or near power or gas utility lines;
(E) Regular or frequent handling of hazardous materials as defined in section 3 of the District of Columbia Hazardous Materials Transportation and Motor Carrier Safety Act of 1988, effective March 16, 1989 (D.C. Law 7-190; D.C. Official Code § 8-1402);
(F) The supervision of, or the provision of routine care for, an individual or individuals who are unable to care for themselves and who reside in an institutional or custodial environment; or
(G) The administration of medications, the performance or supervision of surgeries, or the provision of other medical treatment requiring professional credentials.
Employers can still prohibit marijuana use, consumption, possession, storage, delivery, transfer, display, transport, sale, purchase, or growth at the employee's place of employment, while performing work for the employer, or during the employee's hours of work (with certain exceptions for medical marijuana used to treat a disability).
Employers can also prohibit impairment during work and can maintain policies to test employees for marijuana post-accident and based on reasonable suspicion. There are also exceptions for employers subject to a federal law, contract, or funding agreement.
To ensure they are ready for the new law, employers should: review their employment policies to ensure compliance with the new law; watch for OHR to publish a notice of rights that will need to be posted and distributed to employees; and conduct appropriate training for human resources and management personnel.