Washington, D.C.: Employment Protections for Cannabis Users

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APPLIES TO

All Employers with Employees in Washington, D.C.

EFFECTIVE

As Indicated

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Quick Look

  • Washington, D.C. employers may not take any adverse actions against an employee or applicant because of their recreational cannabis use or participation in D.C.’s or another state’s medical cannabis program.
  • Testing for cannabis is prohibited as a condition of employment except for certain safety-sensitive positions or unless otherwise required by law.

Discussion

Washington, D.C.’s Cannabis Employment Protections Amendment Act of 2022 provides broad protections for employees who use marijuana. Employers may not take any adverse actions against an employee or applicant because of their recreational cannabis use or participation in D.C.’s or another state’s medical cannabis program. The Act is scheduled to become effective on or after July 13, 2023 but is currently unfunded. Once an approved budget includes the law’s provisions, it will become effective. Employers should not wait for an approved budget to begin implementing some of the requirements and limitations.

Adverse actions include failure to hire, failure to promote, demotions, suspensions, and terminations due to use of cannabis, status as a medical cannabis patient, or testing positive on a drug test absent on-the-job impairment. Testing for cannabis is prohibited as a condition of employment except for certain positions or unless otherwise required by law. Testing is allowed for safety-sensitive positions; positions that require regular or frequent operation of a motor vehicle, heavy or dangerous equipment or machinery; regular or frequent work on a construction site or near power or gas utility lines; positions that require the administration of medications; and employees of the federal government. Post-accident and reasonable suspicion drug testing is allowed, although the law is silent on random or return-to-work testing. Employees who exhibit impairment during the hours of work that 1) substantially decreases or lessens the employee’s performance of the duties or tasks of the employee’s job position, or 2) interfere with an employer’s obligation to provide a safe and healthy workplace are also not protected from adverse action if their impairment is due to lawful cannabis use.

Employers are also required to provide a notice to employees of their rights under the law, whether their positions have been designated as safety-sensitive, and the protocols for drug and alcohol testing. The notice must be provided no later than 60 days after the law’s effective date, upon hire, and annually thereafter. The D.C. Office of Human Rights is expected to issue a notice template. Violations of the law can result in a fine of up to $5,000 per violation in addition to a civil penalty, lost wages, reasonable attorneys’ fees, training, reinstatement, and other relief necessary to undo the harm of the adverse action. This is in addition to a plaintiff’s private right of action.

 

Action Items

  1. Review the law here.
  2. Revise alcohol and substance abuse policies including drug testing.
  3. Train appropriate personnel on the requirements.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase