On the Horizon: Broad Employment Protections for Marijuana Users in the District of Columbia
Last summer, the Washington D.C. Council unanimously passed a bill that prohibits employers from refusing to hire, terminating, suspending, failing to promote, demote, or otherwise penalizing any employee who uses marijuana, even if they fail a drug test. In October 2022, the bill, referred to as the D.C. Marijuana Protections Amendment Act of 2022, was signed by Mayor Bowser. The law goes into effect on or after July 13, 2023.[1]
Under the Act, employers are generally prohibited from refusing to hire, firing, or taking other adverse actions against employees for recreational marijuana use, participation in a medical marijuana program, or for failing a marijuana drug test. Nevertheless, employers will be able to take action against employees for marijuana 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.”
The Act also amends the District of Columbia Human Rights Act to require employers 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 other controlled substances prescribed by or taken under the supervision of a licensed health care professional (subject to some exceptions).
Exceptions:
The law identifies several exceptions, including: (1) exceptions for employees in “safety-sensitive” positions; (2) if an employer is required by federal statute, regulations, contract, or funding agreement to prohibit marijuana use; or (3) if the employee used or possessed marijuana while performing work for the employer or during the employee’s work hours.
A “safety-sensitive” position is an employment position designated by the employer in which it is reasonably foreseeable that the employee would likely cause actual, immediate, and serious bodily injury or loss of life to self or others if they performed their work duties while under the influence of drugs or alcohol. The Act gives examples of positions that qualify as safety-sensitive, including 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.
While the law will apply to most employees, employees of the federal government and the DC court system are excluded from the scope of the Act. However, the Act will offer protections for other government employees within the District.
Employee Complaints:
Under the Act, aggrieved employees will have various remedies: (1) filing a complaint with the Office of Human Rights; (2) bringing a private cause of action (recreational marijuana users must first exhaust their administrative remedies with an OHR complaint); and/or (3) filing a complaint with the Attorney General.
An employer who is found to have violated the Act could face civil penalties, along with compensatory damages, lost wages, other equitable relief, and attorney’s fees and costs. Civil penalties include the following: for employers that employ 1 to 30 employees, a fine of up to $1,000 per violation; for employers that employ 31 to 99 employees, a fine of up to $2,500 per violation; and for employers that employ 100 or more employees, a fine of up to $5,000 per violation. The penalty will be doubled for employers who violate the Act more than once in the year.
Employer Responsibilities Looking Ahead:
Within 60 days of the law becoming effective, employers will be required to notify workers of their rights, including if the employer has designated a worker’s role as safety-sensitive, and the employer’s protocols for drug and alcohol testing. This notice must be provided to all new hires upon employment and to employees annually. Additionally, employers should review their drug and alcohol policies to ensure they comply with the Act.
FOOTNOTES
[1] The Act will not go into effect until its fiscal effect is included in an approved budget or July 13, 2023, whichever is later.
