D.C. Will Protect Employees Who Use Recreational Cannabis

D.C. Will Protect Employees Who Use Recreational Cannabis
CANNANNEW REPORT

Royce DuBiner, Kate Hardey, John Thomas Jr., Farnaz Thompson McGuireWoods LLP On July 13, 2022, Washington, D.C., Mayor Muriel Bowser signed new employment protections into law. Although currently unfunded, the Cannabis Employment Protections Amendment Act of 2022 will prohibit employers from taking adverse action against employees or applicants based on their use of cannabis, their status as a medical cannabis program patient, or their failed marijuana drug test without additional indicia of impairment. On-Site Possession and Use As a general matter, the law does not require employers to allow employees to use or possess cannabis at the place of employment, while performing work for the employer or during the employee’s hours of work. However, if the employee is a qualified patient under the medical cannabis program, the employer must regard the patient’s use of medical marijuana to treat a disability as it would the legal use of a controlled substance prescribed by or taken under the supervision of a licensed healthcare professional. In such circumstances, the law appears to allow employees with disabilities to use cannabis at work in a non-smokable form so long as: (1) the employee is not in a safety-sensitive position, and (2) the employer is not committing a violation of federal statute, regulation, contract or funding agreement. Nevertheless, employers are not required to allow employees to be impaired at work, as described below. Drug Tests and Impairment Employers remain allowed to require post-accident or reasonable suspicion drug testing, and to drug test employees in safety-sensitive positions. The new law does not speak to random or return-to-work testing. Existing law requires employers to test a prospective employee for marijuana only after extending a conditional offer of employment. Traditional drug tests can detect cannabis use weeks or months after use, and do not necessarily detect impairment at work. Accordingly, although the law protects…

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