District of Columbia Provides Employment Protections to Cannabis Users

The District of Columbia legalized cannabis for medicinal purposes in 2010 and began to permit individuals to use the drug recreationally in 2015. Last month, on July 13, 2022, Washington, D.C. Mayor Muriel Bowser signed the “Cannabis Employment Protections Amendment Act of 2022” (D.C. Act 24-483), 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. The bill must go through a congressional review period before becoming law.

About the Act

What employers may not do:

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 a 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 will need to point to specific drug testing mandates to rely on this exemption.

All of this means that 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 will be prepared by the Office of Human Rights;
• 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 thereafter (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, along with compensatory damages, lost wages, other equitable relief, and attorney’s fees and costs.

Next Steps for Employers

The District of Columbia joins the growing list of jurisdictions making it more difficult for employers to maintain a drug-free workplace and drug testing policy, especially in the context of pre-employment testing. For instance, New York’s Department of Labor recently issued “Frequently Asked Questions,” which take the position that pre-employment cannabis tests are prohibited except in very narrow situations. Further, most Philadelphia employers are now prohibited from requiring prospective employees to undergo testing 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 beginning to consider whether to change their approach to an increasingly popular drug that is legal for medicinal or recreational use in most states. This rapidly evolving legal landscape presents new challenges for employers, especially multi-state employers. Employers must balance complying with conflicting federal, state, and local laws, maintaining a safe work environment, and protecting applicants’ and employees’ privacy and 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 Act.