['Drug and Alcohol Testing']
['Marijuana']
08/01/2023
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Summary of differences between federal and state regulations
Medical marijuana
A qualifying patient may possess and administer medical marijuana only for treatment of a qualifying medical condition or side effects of a qualifying medical treatment.
Under the Cannabis Employment Protections Amendment Act of 2022, 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.
This does 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
- Permit the use of medical marijuana in a smokable form at a location the employer, employment agency, or labor organization owns, uses, or controls
The Cannabis Employment Protections Amendment Act of 2022 was signed on July 13, 2022, and will become law after a 60-day congressional review period. It will not be enforceable until it is funded, however. The provisions applying to employers take effect the later of July 13, 2023, or when their fiscal effect is included in an approved budget and financial plan.
Medical Marijuana Program Patient Employment Protection Amendment Act of 2020
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.
- A district employee who is participating in a medical marijuana program can request and receive a reasonable accommodation for the use of medical marijuana.
Public employers in the District of Columbia must notify employees in safety-sensitive positions of steps that can be taken to obtain a reasonable accommodation for use of medical marijuana. District agencies must:
- Notify employees when their positions are designated as safety-sensitive,
- Permit a district employee to request written explanation of what makes a position safety-sensitive, and
- Permit employees to appeal the designation of a position as safety-sensitive.
The Office of Employee Appeals will issue a final decision as to whether an employee’s position is safety-sensitive.
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.
Under the Prohibition of Pre-Employment Marijuana Testing Act of 2015, 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.
Nothing in the act shall be construed to interfere with federal employment contracts.
Employee protections under Congressional review
On July 13, Mayor Muriel Bowser signed the Cannabis Employment Protections Amendment Act of 2022 which includes protections for off-duty marijuana use.
With certain exceptions, the law prohibits employers 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 do not violate the law 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
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.
- 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
The Office of Human Rights is creating a notice employers must provide to employees to make them aware of their rights under this law. 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 measure will become law after a 60-day congressional review period. It will not be enforceable until it is funded, however. The provisions applying to employers take effect the later of July 13, 2023, or when their fiscal effect is included in an approved budget and financial plan.
Pre-employment testing
Under the Prohibition of Pre-Employment Marijuana Testing Act of 2015, 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.
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.
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Copyright 2025 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.