Washington, D.C. is poised to join a growing number of state and local jurisdictions that restrict employers from testing employees for cannabis use as a condition of employment. On Tuesday, June 7, the D.C. City Council approved the Cannabis Employment Protections Amendment Act. The bill is pending approval by D.C. Mayor Muriel Bowser and, if signed, will become law after a 60-day congressional review.
Who is Covered by the Bill?
The bill applies to nearly all employers in D.C. except those employing close relatives to perform work around the employer's household. Likewise, nearly all employees and prospective employees are covered by the bill, including unpaid interns. Excluded from the testing restrictions are those in safety-sensitive positions in which cannabis use could foreseeably cause "actual, immediate, and serious bodily injury or loss of life to self or others." Such positions include security personnel, certain medical professionals, operators of vehicles and heavy machinery, construction site workers, power or gas utility workers, and those handling hazardous materials.
How Does the Bill Restrict Employers?
Under the bill, employers cannot terminate, suspend, fail to promote, demote, refuse to hire, or otherwise penalize an employee or prospective employee based on their cannabis use, their status as a medical cannabis program patient, or the presence of cannabinoid metabolites in their system without additional factors indicating impairment. Employers must also treat employees' 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.
What Can Employers Do?
Employers can still test and discipline employees for cannabis use in certain situations. For example, employers can test and discipline employees in safety-sensitive positions for cannabis use and can test to comply with their obligations under federal statute, federal regulations, or federal contracts or funding agreements. Employers can also require post-accident and reasonable-suspicion drug testing.
The prohibitions on cannabis testing as a condition of employment do not mean employers must allow cannabis at work; to the contrary, the D.C. bill would allow employers to prohibit cannabis use, consumption, possession, growing, and sale or transfer at work. Employers may also take action against employees who are impaired at work, meaning the employee has specific articulable symptoms while working that substantially decrease the employee's performance of their duties or interfere with the employer's ability to provide a safe and healthy workplace as required by law.
The exception to the above is medical cannabis use. However, employers will not be required to allow those in safety-sensitive positions to use medical cannabis at work. Employers also need not permit the use of medical cannabis in a smokable form at their worksite.
Takeaway: Employers Should Review Their Drug Testing Policies for Compliance with State and Local Law
Laws and ordinances restricting employers from making cannabis testing as a condition of employment already exist in several states and localities, including Nevada, New Jersey, New York, Philadelphia, and Rhode Island. These laws vary in the extent of protections afforded to employees. Some laws, like those in Nevada and Philadelphia, apply only to pre-employment testing. However, several jurisdictions effectively restrict almost all cannabis testing, similar to the bill pending mayoral approval in D.C. This is a rapidly changing area of law, and we expect more jurisdictions to enact similar laws restricting or prohibiting employer testing. Employers should also explore training supervisors on valid methods to observe employee impairment by valid methods other than drug testing. Employers should review their policies for compliance with existing laws and monitor the jurisdictions where they are located for further developments.
Repercussions for employer violations of these types of statutes and ordinances can be steep. For example, the D.C. bill provides for civil fines per violation, lost wages, compensable damages, and attorneys' fees. Employers with questions about testing employees for cannabis use should consult with experienced employment counsel.
To help navigate the land mines posed by the trend in state and local laws restricting cannabis testing of employees, please join us on June 28, at noon Eastern Time, for our webinar entitled "Cannabis Testing in the Workplace: Navigating the Hazy Landscape," where a panel of Foley lawyers will be joined by Darrin Grondel of responsibility.org, a national expert on observing and measuring impairment.
You can register by clicking here RSVP.
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