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Washington, DC, Takes Steps to Protect Employees’ Off-Duty Marijuana Use – Publications

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Washington, DC, City Council unanimously passed a bill on June 7 that would prohibit employers from basing adverse employment actions on an individual’s lawful, off-duty use of marijuana, unless certain exceptions apply. The Cannabis Employment Protections Amendment Act of 2022 awaits approval by Mayor Muriel Bowser.

Under the act, employers cannot base an adverse employment action on (1) an individual’s legal, off-duty use of cannabis; (2) an individual’s status as a medical cannabis program patient; or (3) the presence of cannabinoid metabolites on a drug test, without additional evidence of on-the-job impairment.

Exceptions

There are, however, a few exceptions. Specifically, an employer is exempt from the law to the extent that the employer’s actions are necessary to comply with a federal law or regulation, or with a federal contract or funding agreement to which the employer is a party. The act also contains a safety-sensitive exception, which applies to “any position, as designated by the employer, in which it is reasonably foreseeable that, if the employee performs the position’s routine duties or tasks while under the influence of drugs or alcohol, the employee would likely cause actual, immediate, and serious bodily injury or loss of life to self or others.”

The types of positions that qualify for this exception include, but are not limited to, those that require or involve the following:

The provision of security services
Regular or frequent operation of a motor vehicle, heavy or dangerous equipment, or heavy or dangerous machinery
Regular or frequent work on an active construction site or occupational safety training
Regular or frequent work on or near power or gas utility lines
Regular or frequent work handling hazardous materials (defined to include explosives, radioactive materials, etiological agents, flammable liquids or solids, combustible liquids or solids, poisons, oxidizing or corrosive materials, or compressed gases)
The supervision of, or the provision of routine care for, individuals who are unable to care for themselves and who reside in an institutional or custodial environment
The administration of medications, the performance or supervision of surgeries, or the provision of other medical treatment

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For nonexempt positions, employers may permissibly prohibit an individual’s use, possession, sale, or purchase of cannabis in the workplace, while the employee is performing work for the employer, or during the employee’s working hours. In addition, employers may permissibly prohibit employees from coming to work or working while impaired, and are expressly permitted to implement workplace policies that require post-accident and reasonable-suspicion drug testing for cannabis, as well as for other drugs.

Importantly, under the act, the term “impairment” means that the “employee manifests specific articulable symptoms while working, or during the employee’s hours of work, that substantially decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or [that] . . . interfere with an employer’s obligation to provide a safe and healthy workplace as required by District or federal occupational safety and health law.” Under this definition, which mirrors the definition of “impairment” added to a recently amended section of New York’s Labor Law, prohibits employers from basing an adverse action on impairment alone. Rather, such impairment must impact the employee’s performance or create a safety concern to justify disciplining or terminating the employee.

These limitations largely track employee-friendly legalization legislation enacted in a handful of jurisdictions, including New York, New Jersey, and Rhode Island. However, the act contains unique notice requirements that other laws have not included.

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Notice Requirements

Specifically, employers must provide notice to employees of (1) their rights under the law; (2) whether the employer has designated the employee’s position as safety sensitive; and (3) the protocols for any testing for alcohol or drugs that the employer performs. This notice, for which the DC Office of Human Rights (OHR) must publish a template within 45 days of the act’s applicability date, must be provided to employees within 60 days of the act’s applicability date, on an annual basis thereafter, and upon the hire of a new employee. The “applicability date” (or effective date) of these sections of the act would either be the date of inclusion of their fiscal effect in an approved budget and financial plan, or 365 days after the mayor approves of the act, whichever date is later.

Employer Risks

With respect to the risks for employers, the act affords aggrieved applicants and employees with the right to file a charge with the OHR. If the OHR determines that an employer committed a violation, the OHR can require the employer to pay the complainant lost wages and attorney fees, as well as impose remedial relief, such as hiring or reinstatement.

The OHR is also authorized to issue civil penalties, which range depending on the employer’s size:

For employers with 1 to 30 employees, the OHR can impose a fine up to $1,000 per violation
For employers with 31 to 99 employees, the OHR can impose a fine up to $2,500 per violation
For employers with 100 or more employees, the OHR can impose a fine up to $5,000 per violation

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In addition, if an employer is found to have violated the act more than once in the preceding year, the OHR can double the fine set forth above. Lastly, after a complainant exhausts their administrative remedies with the OHR, they can file suit in court.

Takeaways for Employers

Washington, DC, has joined an increasing number of jurisdictions that are limiting employer discretion when it comes to basing adverse employment actions on off-duty, legal use of marijuana. The DC act, however, creates a few gray areas that employers should be mindful of as they implement updates to their drug-related policies.

For example, the act’s use of an exemplary list of safety-sensitive positions seems to afford employers with some discretion to determine whether other roles may fall within the definition. On the other hand, the “safety sensitive” definition’s reference to “routine duties or tasks” and the exemplary list’s reference to “regular or frequent” safety-sensitive work arguably preclude employers from applying the safety-sensitive exemption to roles that might require or that only occasionally require the employee to perform safety-sensitive tasks.

These ambiguities may become clear following litigation or through further legislative action. But, as the act awaits mayoral approval, Washington, DC, employers should review their drug use policies and procedures to evaluate their compliance with the act’s requirements.

Contacts

If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:

Philadelphia
W. John Lee

Princeton
August Heckman

Washington, DC
Jonathan Snare

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