DC Bill could limit employer’s ability to test cannabis

On June 7, 2022, the DC Council approved a bill that limits an employer’s ability to test for cannabis. Under the An Act to amend the Cannabis Employment Protection Act, most DC employers cannot fire, hire, or take other personal action against an employee for consuming cannabis, participating in DC’s or another state’s medical cannabis program, or failing a cannabis test required or requested by the employer. The bill also provides that employers must allow employees to use medical marijuana as an accommodation in most cases.

The new job protection for cannabis use is subject to several exceptions. Adverse actions based on an employee’s or candidate’s cannabis use are not prohibited when the employee’s position is designated as “safety-critical”, the employer’s action is required by a federal law, regulation, contract or funding agreement, the employee engaged in cannabis-related activities conduct (i.e. use, possession, transfer, display, sale, growth) on the premises of the employer, while at work or during working hours, or in situations where an employee is intoxicated while at work or during working hours. The bill defines “safety-critical” positions as those “in which it is reasonably foreseeable that, if the employee performs the routine duties or tasks of the position while under the influence of drugs or alcohol, he or she is likely to cause real, immediate and serious consequences of bodily injury or loss of life for oneself or for others”. These positions include police, special police, operators of dangerous machinery and workers active on construction sites. The bill also does not prohibit employers from adopting or implementing drug-free workplace policies or testing employees for cannabis after an accident, if there is a reasonable suspicion of drug use. or if the employee is in a safety-critical position.

Under the bill, employers will be required to issue an employee rights notice regarding cannabis use within 60 days of the bill taking effect and annually thereafter. The notice must also state whether the employee’s position has been designated a safety-sensitive position and state the employer’s protocols for any alcohol or drug testing. Employers who violate the bill could face civil penalties for each violation, payment of lost wages, compensable damages and attorneys’ fees.

Mayor Muriel Bowser has until July 17, 2022 to sign the bill. If the mayor signs the bill, it will become law after a 60-day review by Congress. However, many of the aforementioned provisions will not be “enforceable” to employers until their tax effect is included in an approved budget plan or 365 days after Mayor Bowser approves the law, whichever is later. .

Covered employers in the district should begin reviewing their drug testing and drug-free workplace policies to ensure compliance with the new bill. In addition, it will be essential to designate safety-critical positions that remain subject to testing requirements (other than post-accident or reasonable suspicion). Finally, because of the requirement that adverse actions based on an employee’s impairment must be supported by specifically articulating symptoms, employers concerned about employee drug use should train managers to recognition and documentation of disability at work.

© Polsinelli PC, Polsinelli LLP in CaliforniaNational Law Review, Volume XII, Number 202