Marijuana - District of Columbia

Medical marijuana

District of Columbia employees: Public employees in the District of Columbia have protections for medical marijuana use:

• The district cannot take an adverse action against an individual for participating in a medical marijuana program.
• A district agency cannot use the results of a drug test for marijuana as the basis for employment-related decisions against a medical marijuana patient unless the patient used or was impaired by marijuana at work or during work hours.

These requirements do not apply:

• To positions designated as safety-sensitive, and
• When compliance would cause the agency to violate a federal law, regulation, contract, or funding agreement.

A district employee who is participating in a medical marijuana program can request a reasonable accommodation for the use of medical marijuana. Employers must engage in an interactive process to determine the appropriate reasonable accommodation.

Reasonable accommodations may include:

• Reassigning or transferring an employee to an open position for which the employee is otherwise qualified,
• Modifying or adjusting the employee’s job duties or working environment, or
• Modifying or adjusting the agency’s operating procedures to enable the employee to successfully perform the essential functions of the job.

An accommodation is not reasonable if it would:

• Place the employee in a position that is designated as safety-sensitive,
• Impose an undue hardship on the employing agency, or
• Cause the agency to commit a violation of a federal law, regulation, contract, or funding agreement.

An agency is not required to allow an employee to use marijuana at work or during work hours or be impaired while at work or during work hours.

All employees in the district: The Cannabis Employment Protections Amendment Act of 2022 will protect an employee’s use of medical marijuana (as well as recreational marijuana), unless an employee is in a safety-sensitive position. The act took effect on October 22, 2022, but will not be implemented until the act is included in an approved budget.

The Definitions section of the law is in effect, but the following sections of the Cannabis Employment Protections Amendment Act of 2022 are not yet funded:

• Employment protections
• Rules of construction
• Notice of rights under the law
• Filing a complaint with the Office of Human Rights
• Private cause of action
• Enforcement by Attorney General
• Rulemaking authority

Provisions of the Cannabis Employment Protections Amendment Act of 2022

After the Cannabis Employment Protections Amendment Act of 2022 is fully funded, employers will be required to 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.

The law would not apply if it would require an employer to:

• Violate a federal law or lose federal funding,
• Allow an employee in a safety sensitive position to use marijuana, or
• Permit the use of medical marijuana in a smokeble form at a location the employer, employment agency, or labor organization owns, uses, or controls.

These provisions applying to employers will be enacted when their fiscal effect is included in an approved budget and financial plan.

Recreational marijuana

Under the Possession of Minimum Amounts of Marijuana for Personal Use Initiative, individuals who are at least 21 years old may possess two ounces or less of marijuana. In addition, individuals can cultivate up to six marijuana plants within their residence.

Marijuana cannot be sold, and it is illegal to smoke, eat, or drink marijuana in public.

Pre-employment marijuana testing is restricted in the district: Employers may only test a prospective employee for marijuana use after a conditional offer of employment has been extended, unless otherwise required by law.

An employer may:

• Deny a position based on a positive test for marijuana, and
• Follow workplace drug polices.

Employers are not required to accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or during employment.

Nothing in the law shall be construed to interfere with federal employment contracts.

Additional protections on hold: The Cannabis Employment Protections Amendment Act of 2022 includes protections for off-duty marijuana use, but employment protections included in the act will not be implemented until the act is funded. A section on Cannabis Employment Protections is included in the D.C. Code, but only the Definitions section of the law has been funded. The following sections of the Cannabis Employment Protections Amendment Act of 2022 are not yet funded:

• Employment protections
• Rules of construction
• Notice of rights under the law
• Filing a complaint with the Office of Human Rights
• Private cause of action
• Enforcement by Attorney General
• Rulemaking authority

After the law is fully funded, unless an exception applies, employers will be prohibited from refusing to hire, terminating, suspending, failing to promote, demoting, or penalizing, an individual due to the individual’s:

• Use of cannabis (medical or recreational);
• Status as a medical cannabis program patient; or
• Having cannabinoid metabolites in their system (failure to pass a drug test) without additional factors indicating impairment.

Safety-sensitive exception

Employers will not violate the Cannabis Employment Protections Amendment Act of 2022 when they take action against employees in safety-sensitive positions. The law defines a safety-sensitive position as one where a person will likely cause actual, immediate, and serious bodily injury or loss of life to self or others if performing the position’s duties while under the influence of drugs or alcohol.

Employers determine which positions are safety-sensitive. This may include positions involving:

• The provision of security services, such as police, special police, and security officers
• The custodianship, handling, or use of weapons, including firearms
• Operation of a motor vehicle, heavy or dangerous equipment, or heavy or dangerous machinery
• Work on an active construction site or occupational safety training
• Work on or near power or gas utility lines
• Handling of hazardous materials
• Supervision of, or routine care for, those who are unable to care for themselves and who reside in an institutional or custodial environment
• Administration of medications, performance or supervision of surgeries, or the provision of other medical treatment requiring professional credentials.

Employer protections

The law provides some protections for employers and allows cannabis testing in certain situations. Employers do not violate the law when:

• The employer’s actions are required by federal statute, federal regulations, or a federal contract or funding agreement;
• The employee used, consumed, possessed, stored, delivered, transferred, displayed, transported, sold, purchased, or grew cannabis at the workplace or while working; or
• The employee shows signs of impairment due to cannabis use which impact safety or work performance.

Employers may still perform post-accident or reasonable suspicion drug testing of employees for cannabis or other drugs and may test employees in safety sensitive positions.

Notices

Under the law, the Office of Human Rights is directed to create a notice employers must provide to employees to make them aware of their rights. Employers must let employees know whether their position has been designated as safety sensitive and provide information on drug and alcohol testing protocols.

The notice must be provided:

• Within 60 days after the applicability date of the law,
• Annually thereafter, and
• Upon hire of a new employee.

Effective date

The Cannabis Employment Protections Amendment Act of 2022 was signed on July 13, 2022, and the act took effect on October 22, 2022. It will not be enforceable until it is funded, however. The act’s provisions applying to employers will be enacted when their fiscal effect is included in an approved budget and financial plan.

Pre-employment testing

Employers may only test a prospective employee for marijuana use after a conditional offer of employment has been extended, unless otherwise required by law.

An employer may deny a position based on a positive test for marijuana, although there are some protections for medical marijuana patients who are district employees.

Employers may enforce workplace drug policies and do not need to accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or during employment.

Nothing in the act shall be construed to interfere with federal employment contracts.