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Employment Law Alert – New D.C. law may classify marijuana use AT WORK as a disability accommodation

August 4, 2022

On July 13, 2022, D.C. Mayor Muriel Bowser signed the Cannabis Employment Protections Amendment Act of 2022, which will become law after a 60-day congressional review period.  The law prohibits employers in D.C., with certain exceptions, from refusing to hire, terminating, suspending, failing to promote, demoting, or penalizing, an individual due to the individual’s: (1) use of cannabis; (2) status as a medical cannabis program patient; or (3) having the presence of cannabinoid metabolites in their system without additional factors indicating impairment.  In addition, employers must treat an employee’s medical cannabis use the same as any other legal use of a controlled substance prescribed by or taken under the supervision of a licensed healthcare professional.

Importantly, the law appears to permit employees with disabilities to use medical cannabis at work in a non-smokable form if: (1) the employee is not in a “safety-sensitive” position (defined below); and (2) the employer is not violating a federal statute, regulation, contract or funding agreement.

The law allows employers to prohibit cannabis use, consumption, possession, growing, storage, and sale or transfer at work.  Employers may also take action against employees who are impaired by the use of cannabis at work, meaning that the employee shows specific articulable symptoms while working, or during the employee’s hours of work, that substantially decrease the employee’s performance of their duties, or interfere with an employer’s obligation to provide a safe and healthy workplace as required by law.  Employers can also require post-accident and reasonable suspicion drug testing.

The law does not protect employees whose “position is designated as safety-sensitive.”  A “safety-sensitive” position is defined 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.”  The law also does not apply to actions taken by employers where required by a federal statute, federal regulation, federal contract or funding agreement.

Employers are required to notify employees of their rights under the law, which includes notifying employees whether their positions have been designated as safety-sensitive and the protocols for testing for drugs and alcohol.   Employers must provide this notice: (1) no later than 60 days after the law’s applicability date; (2) annually thereafter; and (3) upon hire of a new employee.  The D.C. Office of Human Rights will create a model notice.  The law will apply when its fiscal effect is included in an approved budget and financial plan, or on July 13, 2023, whichever is later.


 
 

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The contents of this Alert are for informational purposes only and do not constitute legal advice. If you have any questions about this Alert, please contact the Shulman Rogers attorney with whom you regularly work or a member of the Shulman Rogers Employment and Labor Law Group.

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CONTACT

Meredith “Merry” Campbell

Joy C. Einstein

Alexander I. Castelli

Drew T. Ricci