D.C. Enacts Employment Protections for Marijuana Users
The Mayor of the District of Columbia has signed a bill that protects marijuana/cannabis users from adverse employment actions for off-duty use, with certain exceptions. Following a typical period of Congressional review, the law will take effect upon the date of inclusion of its fiscal effect in an approved budget and financial plan or 365 days after the Mayor approves this Act, whichever is later (i.e. at least a year from now). Beyond the general prohibition, the Act specifically provides:
- Employees, which includes unpaid interns, may not use or otherwise handle marijuana at the workplace, while performing work, or during work hours.
- Employers may prohibit employees from being impaired at work and may take adverse action if the employee manifests specific articulable symptoms of impairment during work hours that substantially and negatively impacts the employee’s performance or interferes with the employer’s legal obligation to provide a safe and healthy workplace.
- There is an exception for those in “safety sensitive positions,” defined as positions 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 would likely cause actual, immediate, and serious bodily injury or loss of life to self or others. Examples of such positions include security services, construction, vehicle or heavy/dangerous equipment operators, hazardous materials handlers, certain medical caregivers, and caregivers to vulnerable adults.
- Another exception is where the employer must prohibit employees’ marijuana use under federal statute, federal regulations, or a federal contract or funding agreement.
- Employers may have a reasonable drug-free workplace policy that provides for post-accident or reasonable suspicion testing of employees in safety-sensitive positions.
- Employers must provide employees with notice of their rights under this Act, whether they are designated safety-sensitive, and any testing protocols. This notice must be provided to all employees within 60 days after the law takes effect and then annually, and to all new hires. The DC Office of Human Rights (OHR) will develop a template for the required notice.
- Employees may file complaints with the DC OHR up to one year after an alleged violation. The Act sets forth a mediation and fact-finding process, including judicial review, for such complaints.
- The Act also provides that employees may file suit against the employer, under certain circumstances.
- The Mayor will issue rules implementing this Act, but enforcement will not be delayed pending issuance of the rules.