District of Columbia Enacts Employment Protections for Marijuana Users

Kollman & Saucier
Kollman & Saucier

The D.C. Mayor signed the Cannabis Employment Protections Amendment Act of 2022, which prohibits adverse employment actions against marijuana/cannabis users for most off-duty use, with certain exceptions.  Once the Congressional review period occurs, the law will become effective once its fiscal impact is included in an approved budget and financial plan, or 365 days after the Mayor approves the Act, whichever is later (so, at least a year from now).  The Act does retain protections for employers to regulate and discipline for on-duty (and some off-duty) behavior:

  • 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.

  • Employees in “safety sensitive positions” may be disciplined for off-duty use.  The Act defines these 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 include security services, construction, vehicle or heavy/dangerous equipment operators, hazardous materials handlers, certain medical caregivers, and caregivers to vulnerable adults.

  • Employers may also take action for off-duty use when they must prohibit employees’ marijuana use under federal statute, federal regulations, or a federal contract or funding agreement.

  • Employers may enforce 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, including whether they are designated safety-sensitive positions, and any testing protocols.  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 sample required notice. 

Employees may file complaints with the 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.  Rules will be issued implementing the Act, but enforcement will not be delayed pending issuance of the rules.

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