The District of Columbia has enacted legislation (B24-109) prohibiting employers from taking adverse action against an applicant or employee for the off-duty, lawful use of cannabis. The law also includes additional protections for medical cannabis users and a new notice requirement for employers.
The Details:
The following changes will apply on the date their fiscal impact appears in the district’s approved budget or 365 days after the mayor approved the law, whichever is later. The law was signed by the mayor on July 13, 2022.
Employers are prohibited from taking adverse action (e.g., terminating or refusing to hire an employee) based upon:
- The individual's use of cannabis;
- The individual's status as a medical cannabis program patient; or
- The presence of cannabinoid metabolites in the individual’s bodily fluids in an employer-required or -requested drug test without additional factors indicating impairment under the law.
Exceptions:
B24-109 states that an employer wouldn’t be in violation of the law if they take action based on any of the following:
- The employee is in a position designated as safety sensitive.
- The employer's actions are required by federal statute, federal regulations, or a federal contract or funding agreement.
- The employee used, consumed, possessed, stored, delivered, transferred, displayed, transported, sold, purchased, or grew cannabis at their place of employment, while performing work for the employer, or during the employee's hours of work.
- The employee is impaired by the use of cannabis — meaning 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 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.
Drug-Free Workplace Policies:
The law doesn’t prohibit an employer from adopting a reasonable drug-free workplace policy that:
- Requires post-accident or reasonable suspicion drug testing of employees for cannabis or other drugs or drug testing of employees in safety sensitive positions;
- Is necessary to comply with federal law, or a federal contract or funding agreement, if applicable to the employer;
- Prohibits the use, consumption, possession, storage, delivery, transfer, display, transportation, sale, purchase, or growing of cannabis at the employee's place of employment while performing work for the employer or during the employee’s hours of work; or
- Prohibits employees from being impaired at the employee's place of employment while performing work for the employer or during the employee's hours of work.
Medical Cannabis:
The law clarifies that employers must treat a qualifying patient's use of medical marijuana to treat a disability in the same manner as it would treat the legal use of a controlled substance prescribed by or taken under the supervision of a licensed healthcare professional. This law doesn’t apply if it would require an employer to:
- Commit a violation of a federal statute, regulation, contract or funding agreement;
- Permit an employee to use medical marijuana while the employee is in or assigned to a safety sensitive position; or
- Allow the use of medical marijuana in a smokable form at a location the employer owns, uses, or controls.
New Notice Requirement:
Employers must provide notice to employees of their rights under the law, whether the employer has designated the employee's position as safety sensitive, and the protocols for any testing for alcohol or drugs that the employer performs. The notice must be provided:
- Within 60 days after the applicability date and on an annual basis thereafter to all existing employees; and
- Upon hire of a new employee.
The Office of Human Rights (OHR) will publish a sample notice.
Next Steps:
- Review policies and drug-testing procedures to ensure compliance with the law by the effective date.
- Watch for the publication of the sample notice by the OHR.
- Provide the required notice to existing employees and new hires by the applicable deadline.
- Train supervisors on the law’s new rules and protections.