D.C. legislation is taking effect on July 13, 2023, giving sweeping protections to employees who use cannabis recreationally. D.C. Act 24-483, titled the "Cannabis Employment Protections Act of 2022" (the "Law") will provide most employees in the District with protections based on their off-hours use of cannabis. While this new law provides additional protections for employees, it is not without its exceptions, and employers and employees need to tread carefully in this emerging area of employment law.
What Does the New Law Say?
Under D.C. Act 24-483, employers cannot refuse to hire, terminate, suspend, fail to promote, demote, or otherwise impact an individual's employment based on: (1) their off-hours use of cannabis; (2) their status as a cannabis program patient; or (3) the presence of cannabinoid metabolites in the individual's body fluids in an employer-required or requested drug test.
While this Law does provide for the above protections, impairment on the job is still grounds for termination. "Impairment" for the purposes of the Law is defined as where "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 such 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."
Additionally, employers are not required to permit or accommodate the use, consumption, or possession of marijuana at work unless otherwise required under another law, such as the Americans with Disabilities Act. That said, if an employee is using medical marijuana to treat a disability, they must be treated the same as an employee using a legal controlled substance prescribed by a licensed medical professional.
The protections in this Law do not extend to employees whose "position is designated as safety sensitive." The law defines a "safety sensitive" position as "an employment position as 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, he or she would likely cause actual, immediate, and serious bodily injury or loss of life to self or others."
A "safety sensitive" job may include, but is not limited to, construction workers, medical practitioners, employees handling hazardous materials, and workers whose jobs require them to frequently operate heavy machinery.
The law also carves out exceptions for employees who are affected by federal law. Thus, employers may take adverse actions against employees who utilize cannabis if the action is required by federal statute, regulation, a federal contract, or a federal funding agreement.
Employers will be required to provide notice to employees of their rights under this Law, annually thereafter, and upon the hire of a new employee. Furthermore, employers must inform their employees whether their position has been designated as safety sensitive under the law and of any internal drug testing protocols.
What Penalties Exist Under this Law?
Employers who do not comply with this Law may be issued a fine by the D.C. Office of Human Rights depending on the size of the employer:
- Between 1 and 30 employees, up to $1,000.00 in fines;
- Between 31 and 99 employees, up to $2,500.00 in fines; and
- 100 or more employees, up to $5,000.00 in fines.
Half of the penalty is paid to the complainant and the other half is awarded to the D.C. government.
In addition to these penalties, the D.C. Office of Human Rights may order employers to:
- Pay double the penalty if found to be in violation more than once in a single year;
- Pay the complainant's lost wages if they were terminated;
- Pay the complainant's reasonable attorneys' fees;
- Undergo training to further familiarize itself with the law;
- Reinstate an employee terminated for their cannabis use; or
- Provide other relief necessary to undo any adverse employment action.
Employees may also bring a private right of action against their employer for failure to comply with this Law. The statute of limitations for these private rights of action, which is tolled while pending before the D.C. Office of Human Rights, is 1 year from the date of the alleged unlawful action.
How Should Employers Begin Preparing for Compliance?
Monitor the D.C. Office of Human Rights for a template notice to comply with the Law's notice requirements.
Employers, especially government contractors, should carefully review any obligations they have with the federal government to assess if their employees are indeed protected under this Law. Additionally, for larger employers, some employees may be protected under the Law whereas others may fall within the "safety sensitive" job exception.
Assess whether current drug testing requirements need updating or suspension in the wake of this new Law.
Review and update employee handbooks to include reference to this Law and what protections are afforded to employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.