DC employers will no longer be able to take adverse action against employees for certain cannabis use.
The new rules are part of the Cannabis Employment Protections Amendment Act, which was passed by the DC Council then approved by Mayor Muriel Bowser last July.
The Act is scheduled to take effect on July 13, 2023 or when it’s included in an approved budget, whichever is later. The Act is not currently included in any fiscal budget.
What Actions will be Prohibited?
The Act prohibits an employer from taking an adverse action like terminating an employee or refusing to hire a candidate based on the individual’s:
- Use of cannabis;
- Status as a medical cannabis program patient; or
- Testing positive for marijuana in an employer drug test without additional factors indicating they are impaired.
In a nutshell, an employer cannot take any adverse action against an employee or applicant based on a drug test showing cannabis in their system, unless there is some evidence to show they are impaired.
According to the new law, the bar to show impairment is high. An employer has to show that the employee manifests specific and articulable symptoms while working or during their work hours that substantially decrease or lessen their performance or that the specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy workplace as required by DC and federal occupational safety and health laws.
Will an Employer ever be Able to Take an Adverse Action Related to Cannabis Use?
Yes, an employer can still take an adverse employment action related to an employee’s use of cannabis in three situations:
- The position is designated as “safety sensitive,” which is defined in the law as one in which it is reasonably foreseeable that if the employee performs their job duties while under the influence of drugs or alcohol, they would cause actual, immediate, and serious bodily injury or loss of life to themselves or others;
- The employer’s actions are required by federal statute, regulation, contract, or funding agreement; or
- The employee used or possessed cannabis at their job, though there is an important exception for medical cannabis use.
What about Medical Cannabis Use?
Under the law, an employer has to treat a qualifying patient’s use of medical marijuana for a disability in the same manner as it would treat the legal use of a controlled substance prescribed by a healthcare professional, subject to narrow exceptions. Specifically, the law appears to allow employees with disabilities to use medical marijuana at work as a medical accommodation as long as 1) it is in a non-smokeable form at an employer’s location; 2) the employee is not in a safety sensitive position; 3) the employer is not committing a violation of federal law, regulation, contract, or funding agreement; and 4) the employee cannot be “impaired” as defined above
Employers will also have to provide employees with certain notices under the law.
In anticipation of the law’s effective date, DC employers should begin assessing which positions will be covered by the law and any changes to their drug testing practices that will need to be adjusted to comply with this law. As always, Lerch Early’s DC employment attorneys are available to assist your company with navigating new laws.