On June 7, 2022, the D.C. Council approved a bill that limits an employer’s ability to test for cannabis.  Under the Cannabis Employment Protections Amendment Act, most D.C. employers may not fire, fail to hire, or take other personnel actions against an employee for using cannabis, participating in D.C.’s or another state’s medical cannabis program, or failing an employer-required or requested cannabis drug test.  The bill also provides that employers must allow employees to use medicinal marijuana as a disability accommodation in most circumstances. 

The new employment protection for cannabis use is subject to several exceptions.  Adverse actions based on an employee’s or applicant’s cannabis usage are not prohibited where the employee’s position is designated as “safety sensitive,” the employer’s action is required by a federal statute, regulation, contract, or funding agreement, the employee engaged in cannabis-related conduct (i.e., use, possession, transfer, display, sale, growth) at the employer’s premises, while working, or during working hours, or in situations where an employee is impaired while working or during working hours. The bill defines “safety sensitive” positions as those “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, he or she would likely cause actual, immediate, and serious bodily injury or loss of life to self or others.”  These positions include police, special police, hazardous machine operators, and active construction site workers.  The bill also does not prohibit employers from adopting or implementing drug-free workplace policies or testing employees for cannabis after an accident, upon reasonable suspicion of drug use, or if the employee works in a safety-sensitive position.

Under the bill, employers will be required to issue a notice of employee rights regarding cannabis use within 60 days after the bill becomes “applicable,” and annually thereafter.  The notice must also include whether the employee’s position has been designated a safety sensitive position and state the employer’s protocols for any testing for alcohol or drugs. Employers who violate the bill could face civil fines for each violation, payment of lost wages, compensable damages, and attorneys’ fees.

Mayor Muriel Bowser has until July 17, 2022 to sign the bill. If the Mayor signs the bill, it will become law after a 60-day Congressional review. However, many of the above-referenced provisions will not be “applicable” to employers until their fiscal effect is included in an approved budget plan or 365 days after Mayor Bowser approves the act, whichever is later.

Covered employers in the District should begin reviewing their drug testing and drug-free workplace policies to ensure compliance with the new bill.  In addition, it will be critical to designate safety-sensitive positions that remain subject to testing requirements (other than post-accident or reasonable suspicion).  Finally, due to the requirement that adverse actions based on an employee’s impairment be supported by specifically articulable symptoms, employers that are concerned about employee drug usage should train managers on recognizing and documenting workplace impairment.