Washington D.C. Extends Protections to Employees For Cannabis Use, Effective July 1, 2023

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June 26, 2023

Update: As of August 24, 2023, the Cannabis Employment Protections Amendment Act of 2022 has not yet been included on an approved budget in Washington D.C. and has yet to take effect. Check back for updates as we continue to monitor the status of the budget approval.

Effective July 1, 2023, Washington D.C. enacted the Cannabis Employment Protections Amendment Act of 2022 (the “Act”).

Employers Impacted: The Act defines an employer as any person who, for compensation, employs an individual, and any person acting in the interest of such employer, directly or indirectly. It does not include the employer’s parent, spouse, or child engaged in work in and about the employer’s household. The term also extends to public employers, including the D.C. government, but does not include the D.C. court system and the federal government.

Prohibited Conduct: D.C. employers will be prohibited from refusing to hire, terminate from employment, suspend, fail to promote, demote, or penalize an individual based upon the individual’s use of cannabis, the individual’s status as a medical cannabis program patient, or the presence of cannabis in the individual’s bodily fluids in a drug test without additional factors indicating impairment. Importantly, impairment is not mere use of cannabis.

Impairment: As defined by the Act, impairment is indicated when an 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 symptoms interfere with an employer’s obligation to provide a safe and healthy workplace as required by D.C. or federal occupational safety and health law.

Exceptions: The Act does not prohibit employers from taking adverse action against employees in connection with cannabis use if (1) the employee’s position is designated as safety sensitive; (2) the employer’s actions are required by federal law, federal contract, or funding agreement; and (3) the employee used cannabis at the employee’s place of employment, while performing work for the employer, or during the employee’s hours of work.

Safety Sensitive Positions: The Act defines “safety sensitive” 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, the person would likely cause actual, immediate, and serious bodily injury or loss of life to self or others. Positions may involve:

1. the provision of security services, such as police and security officers, or the handling of weapons, including firearms
2. operation of a motor vehicle or heavy or dangerous equipment/machinery
3. work on an active construction site or occupational safety training
4. work on or near power or gas utility lines
5. handling hazardous materials
6. the supervision of individual(s) who are unable to care for themselves and who reside in an institutional or custodial environment
7. the administration of medications, the performance or supervision of surgeries, or the provision of other medical treatment requiring professional credentials

Notice Requirements: D.C. employers will be required to give notice to new and existing employees of (1) their rights under the Act; (2) whether the employee’s position is designated as safety sensitive; and (3) the protocols for tests for alcohol or drugs. The notice is required to be given upon hiring a new employee and within 60 days of July 1, 2023 (by September 1, 2023), and annually thereafter. Notably, the Office of Human Rights will publish a template for the notice required under the Act within 45 days of July 1, 2023 (by August 14, 2023).

Employer Takeaways: Employers in D.C. should ensure compliance with the requirements of the Act, including, but not limited to:

• reviewing employee job duties and tasks to determine which, if any, are or should be designated as safety sensitive positions
• circulating the required notice to all employees by September 1, 2023
• reviewing and updating current procedures for hiring new employees to include the required notice under the Act
• adopting the notice template, once published by the Office of Human Rights, to satisfy the notice requirements

This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice.  Always consult an attorney with specific legal issues.