Last summer, the Washington DC Council unanimously passed a bill prohibiting employers from refusing to hire, terminating, suspending, failing to promote, demoting, or penalizing any employee who uses marijuana, even if he or she fails a test. drugs. In October 2022, the bill, known as DC Marijuana Protections Amendment Act of 2022, was signed by Mayor Bowser. The law takes effect from July 13, 2023.(1)
Under the Act, employers are generally prohibited from refusing to hire, terminate, or take other adverse actions against employees for recreational marijuana use, participation in a medical marijuana program, or for failing a marijuana drug test. However, employers will be able to take action against employees for marijuana use if “the employee manifests specific articulable symptoms while at work or during the employee’s work hours, which diminishes or substantially diminishes the employee’s performance in the functions or tasks of the employee’s work position” or if such “specific articulating symptoms interfere with the 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 the medical marijuana use of a patient qualifying for a disability the same way they would treat the legal use of other controlled substances prescribed or taken under the supervision of a licensed healthcare professional (subject to certain exceptions).
The law identifies several exceptions, including: (1) exceptions for employees in “security sensitive” jobs; (2) if an employer is required by federal law, regulation, contract or funding agreement to prohibit the use of marijuana; or (3) if the employee used or possessed marijuana while working for the employer or during the employee’s work hours.
A “safety-sensitive” position is an employer-designated position of employment in which it is reasonably foreseeable that the employee would be likely to cause actual, immediate and serious bodily harm or loss of life to himself or others if he performed his job duties while under the influence of drugs or alcohol. The Act provides examples of jobs that qualify as safety sensitive, including jobs that require (1) regular or frequent operation of a motor vehicle or heavy or dangerous equipment or machinery, (2) regular or frequent work on a busy construction site or occupational safety training, (3) regular or frequent work on or near power or gas lines or handling hazardous materials (as defined by district law), (4) supervision or provision of routine care for individuals unable to care who live in an institutional or custodial setting, or (5) administering medication, performing or supervising surgery, or providing other medical treatment that requires professional credentials.
While the law applies to most employees, employees of the federal government and the DC court system are excluded from the scope of the law. However, the Act will provide protections for other government officials within the District.
Under the Act, aggrieved employees will have several remedies: (1) file a complaint with the Office of Human Rights; (2) file a private cause of action (recreational marijuana users must first exhaust their administrative remedies with an OHR complaint); and/or (3) file a complaint with the Attorney General.
An employer found to have violated the Act could face civil penalties, along with compensatory damages, loss of wages, other equitable relief, and attorneys’ fees and costs. Civil penalties include the following: for employers employing 1 to 30 employees, a fine of up to $1,000 per violation; for employers employing 31 to 99 employees, a fine of up to $2,500 per violation; and for employers employing 100 or more employees, a fine of up to $5,000 per violation. The penalty will be doubled for employers who violate the Law more than once a year.
Employer Responsibilities Looking Ahead:
Within 60 days after the law goes into effect, 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 at the time of hire and to employees annually. Additionally, employers should review their drug and alcohol policies to ensure they comply with the law.
(1) The Act will not take effect until its tax effect is included in an approved budget or on July 13, 2023, whichever is later.