D.C. Will Protect Employees Who Use Recreational Cannabis

July 20, 2022

On July 13, 2022, Washington, D.C., Mayor Muriel Bowser signed new employment protections into law. Although currently unfunded, the Cannabis Employment Protections Amendment Act of 2022 will prohibit employers from taking adverse action against employees or applicants based on their use of cannabis, their status as a medical cannabis program patient, or their failed marijuana drug test without additional indicia of impairment.

On-Site Possession and Use

As a general matter, the law does not require employers to allow employees to use or possess cannabis at the place of employment, while performing work for the employer or during the employee’s hours of work.

However, if the employee is a qualified patient under the medical cannabis program, the employer must regard the patient’s use of medical marijuana to treat a disability as it would the legal use of a controlled substance prescribed by or taken under the supervision of a licensed healthcare professional.

In such circumstances, the law appears to allow employees with disabilities to use cannabis at work in a non-smokable form so long as: (1) the employee is not in a safety-sensitive position, and (2) the employer is not committing a violation of federal statute, regulation, contract or funding agreement. Nevertheless, employers are not required to allow employees to be impaired at work, as described below.

Drug Tests and Impairment

Employers remain allowed to require post-accident or reasonable suspicion drug testing, and to drug test employees in safety-sensitive positions. The new law does not speak to random or return-to-work testing. Existing law requires employers to test a prospective employee for marijuana only after extending a conditional offer of employment.

Traditional drug tests can detect cannabis use weeks or months after use, and do not necessarily detect impairment at work. Accordingly, although the law protects employees who merely fail a marijuana drug test from adverse action, the law does not protect employees who are impaired at work. An employee is considered “impaired” if the employee manifests specific articulable symptoms while working, or during the employee’s hours of work, that: (1) substantially decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or (2) interfere with an employer’s obligation to provide a safe and healthy workplace as required by occupational safety and health law. D.C. employers should review their policies and training to ensure they are prepared to satisfy these requirements.

Employers and Employees Exempt From the Law

The law applies to almost all private employers, employees and applicants. However, the law makes exceptions regarding certain safety-sensitive employees and employers affected by federal laws and programs.

Safety-Sensitive Employees. The law carves out exceptions related to safety-sensitive employees, who remain subject to their employer’s policies on cannabis use. “Safety-sensitive” refers to an employment position, as designated by the employer, 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 likely would cause actual, immediate and serious bodily injury or loss of life to self or others.

Such positions may require or involve: (1) providing security services or handling weapons, including firearms; (2) operating a motor vehicle, or heavy or dangerous machinery or equipment; (3) working on an active construction site or occupational safety training; (4) working on or near power or gas utility lines; (5) handling hazardous materials; (6) supervising or caring for individuals who are unable to care for themselves and who reside in an institutional or custodial environment; or (7) providing medical treatment requiring professional credentials, including administering medication or supervising or performing surgery. Employers should review each position in Washington, D.C., and determine whether it qualifies as safety-sensitive. As discussed below, safety-sensitive employees must be notified in advance that their positions have been so designated.

Federally Exempt Employees. The law also carves out exceptions when certain employees are affected by federal law. Specifically, the law does not prohibit employers from taking adverse action against employees who use cannabis at work if such action is required by federal statute, federal regulations, a federal contract or a federal funding agreement. Federal government contractors and grantees will want to review the terms of their contracts to determine their obligations. For example, Department of Defense contractors may be subject to the Drug-Free Work Force Rule.

Workplace Notice

Employers are required to notify employees of their rights under the new law. This includes notifying employees whether their positions have been designated as safety-sensitive and of the protocols for testing for alcohol or drugs.

Employers must provide this notice: (1) no later than 60 days after the law’s applicability date (discussed below), (2) annually thereafter, and (3) upon hire of a new employee. The D.C. Office of Human Rights will publish a template for this required notice.

Enforcement Actions

The enforcement process depends on whether the employee is a medical cannabis program patient. If the employee is a medical cannabis program patient, he or she may proceed directly to filing a private cause of action. If the employee is not a program patient, the employee must first exhaust administrative remedies by filing an administrative complaint with the D.C. Office of Human Rights within one year of the violation.

Office of Human Rights. The D.C. Office of Human Rights will mediate and/or investigate and issue a determination. If the Office of Human Rights finds a violation, it may impose the following civil penalty per violation, depending on the size of the employer (number of individuals it employs): (1) between one and 30 employees, up to $1,000; (2) between 31 and 99 employees, up to $2,500; (3) 100 or more employees, up to $5,000. Half of the penalty is awarded to the complainant, and half is awarded to the D.C. government.

The Office of Human Rights also may order employers: (1) to pay double the civil penalty if the employer violated the law more than once in the previous year, (2) to pay the complainant’s lost wages, (3) to pay reasonable attorneys’ fees, (4) to undergo training, (5) to reinstate an employee, and (6) to provide other relief necessary to undo any adverse employment action.

If the Office of Human Rights has not issued a final determination within 365 days of the complaint, the employee is deemed to have exhausted administrative remedies and may pursue a private cause of action as described below.

Private Right of Action. The complainant must file the private cause of action within one year after the unlawful act. The statute of limitations is tolled during the time the employee’s complaint is pending before the Office of Human Rights.

The court may award any relief it deems appropriate. The law expressly includes the remedies discussed above with respect to the Office of Human Rights, except it does not include a provision to award double the civil penalty if the employer violated the law more than once in the previous year.

Attorney General Enforcement. In addition to employees pursuing claims as described above, the attorney general also may receive complaints and conduct investigations. An attorney general’s investigation does not toll the time for filing either complaints with the Office of Human Rights or lawsuits under the private cause of action. The attorney general may file a civil action and a court may award damages similar to those described above.

Applicability and Effective Dates

The law is currently unfunded, and therefore not enforceable.

Two procedural provisions of the law (the requirement that the Office of Human Rights publish a template notice and the requirement that the mayor issue implementing regulations) will apply only when their fiscal effect is included in an approved budget and financial plan.

The remainder of the law will apply when its fiscal effect is included in an approved budget and financial plan, or on July 13, 2023, whichever is later.

For questions about these changes, or about any other D.C. employment law, contact the authors of this article or another member of the McGuireWoods labor and employment team or cannabis, hemp & CBD team.

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