Washington, D.C. Bill Would Limit Employers’ Ability to Discipline Based on Marijuana Testing

On June 7, 2022, the Council of the District of Columbia handed the Hashish Employment Protections Act of 2022 (the “Invoice”).  If signed into regulation by D.C. Mayor Muriel Bowser, the Invoice would prohibit employers, with sure exceptions, from  “refus[ing] to rent, terminat[ing] from employment, droop[ing], fail[ing] to advertise, demot[ing], or penalize[ing] a person” resulting from such particular person’s:

1. “use of hashish,”

2. “standing as a medical hashish program affected person,” or

3. having “the presence of cannabinoid metabolites in [their] bodily fluids in an employer-required or requested drug check with out further components indicating impairment.”  “Impairment” for functions of the Invoice is outlined as the place “the worker manifests particular articulable signs whereas working, or in the course of the worker’s hours of labor, that considerably lower or reduce the worker’s efficiency of the duties or duties of the worker’s job place, or such particular articulable signs intrude with an employer’s obligation to offer a protected and wholesome office as required by District or federal occupational security and well being regulation.”

The Invoice would additional mandate that employers deal with a qualifying affected person’s use of medical marijuana to deal with a incapacity in the identical method as it could deal with the authorized use of a managed substance prescribed by or taken underneath the supervision of a licensed well being care skilled.

Staff coated by the Invoice, until topic to an exception, embrace any “particular person employed by or searching for employment from an employer,” in addition to unpaid interns.  The Invoice applies to all personal employers in D.C., outlined as any one that “for compensation, employs a person,” and “any individual appearing within the curiosity of such employer, immediately or not directly,” however doesn’t apply the place the individual employed is “the employer’s dad or mum, partner, or kids engaged in work in and in regards to the employer’s family.”  Sure public employers are additionally coated.

The Invoice’s protections don’t prolong to workers whose “place is designated as security delicate.”  The Invoice defines a “security delicate” place as “an employment place as designated by the employer, through which it’s fairly foreseeable that, if the worker performs the place’s routine duties or duties whereas underneath the affect of medicine or alcohol, she or he would seemingly trigger precise, fast and severe bodily damage or lack of life to self or others.”

The Invoice supplies some examples of duties and jobs which will render a place “security delicate,”  together with, however not restricted to: safety officers, law enforcement officials, development staff, energy/fuel line upkeep staff, workers dealing with hazardous supplies, caretakers, medical practitioners, and staff whose jobs require them to steadily function heavy or harmful equipment.

The Invoice’s protections additionally don’t prolong to actions taken by employers the place required by a federal statute, federal regulation or federal contract or funding settlement. Additional, an employer could be permitted to take disciplinary or different antagonistic motion towards an worker – whether or not or not in a “security delicate” place – if such worker makes use of, consumes, possesses, shops, delivers, transfers, shows, transports, sells, purchases or grows hashish on the worker’s place of employment, whereas performing work for the employer, or in the course of the worker’s hours of labor, or the place the worker is “impaired” by means of hashish, because the time period is outlined above.

Moreover, the Invoice would allow employers to undertake an affordable drug-free office or employment coverage that:

• requires post-accident or cheap suspicion drug testing of workers for hashish or different medicine;

• requires drug testing of workers in security delicate positions;

• is important to adjust to federal regulation (together with the Drug Free Office Act of 1988), a federal contract or funding settlement, if relevant to the employer;

• prohibits the use, consumption, possession, storage, supply, switch, show, transportation, sale, buy, or rising of hashish on the worker’s place of employment, whereas performing work for the employer or in the course of the worker’s hours of labor; or

• prohibits workers from being impaired on the worker’s place of employment, whereas performing work for the employer or in the course of the worker’s hours of labor.

Employers could be required underneath the Invoice to inform workers of their rights underneath the Invoice, of their standing as “security delicate” if relevant, and/or of any protocols for drug and alcohol testing, inside 60 days of the relevant date of the regulation and yearly thereafter, in addition to upon rent for brand spanking new workers.

Staff claiming employer noncompliance could be permitted to file a grievance with the D.C. Workplace of Human Rights inside one yr after the alleged act of noncompliance. Employers present in violation of the Act could be topic to penalties starting from $1,000 to $5,000 per violation (with double penalties if the employer is discovered to have violated the regulation’s provisions greater than as soon as within the earlier yr), in addition to cost of misplaced wages and cheap legal professional’s charges.  Equitable aid, together with reinstatement, would even be an accessible treatment. Staff would additionally be capable to deliver a personal explanation for motion towards an employer for failure to abide by the regulation after exhausting administrative cures.  The Lawyer Normal would even be empowered to obtain and examine complaints underneath the Invoice.

The Invoice would take impact following approval by the Mayor, a 60-day congressional evaluation interval and publication within the District of Columbia Register.

Alisha Bruce, a regulation clerk within the Labor Division, additionally contributed to this text.