District of Columbia Employers Take Notice: City’s Cannabis Employment Protections Amendments Act Takes Effect

Under the Act, which went into effect on July 1, covered employers may not refuse to hire, fire, suspend, fail to promote, demote, or otherwise penalize a protected individual based on:

• The individual’s marijuana use;
• Their status as a medical marijuana program patient; or 
• The presence of marijuana in the individual’s bodily fluids in an employer-required or employer-requested drug test, absent additional factors indicating that the individual is impaired.

Also under the Act, an employer must handle a qualifying patient’s use of medical marijuana to treat a disability in the same manner as it would handle the legal use of a controlled substance prescribed or taken under a licensed healthcare professional’s supervision.

There are some limits. 

The Act authorizes covered employers to take cannabis-related adverse action if:

• The individual is in a position designated as safety sensitive – one in which it is reasonably foreseeable that an employee impaired from using drugs or alcohol would likely cause actual, immediate, and serious bodily injury or death;
• Federal law or a federal contract or funding agreement mandates the adverse action;
• The employee used, consumed, possessed, stored, delivered, transferred, displayed, transported, sold, purchased, or grew marijuana at the employee’s workplace or during their worktime; or 
• Using marijuana has “impaired” the employee, meaning 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, or those symptoms interfere with the employer’s obligation to provide a safe and healthy workplace as required by District of federal occupational safety and health law.

Covered employers must notify employees about their statutory rights, whether the employer has designated the employee’s position as safety sensitive, and the protocols for any testing for alcohol or drugs that the employer performs. The notice is due:

• On August 30, 2023 — 60 days after the Act’s effective date — and annually thereafter to all incumbent employees;
• When the employer hires a new employee; and
• Within 45 days after the DC Office of Human Rights publishes a template for the required initial notice.

Employers that violate the Act are subject to Office of Human Rights administrative fines – $1,000 or less per violation for employers with up to 30 employees; $2,500 or less per violation for employers with 31 to 99 employees; $5,000 or less per violation for employees with 100 or more employees. Repeat offenders – those that violate the statute more than once in the prior year — could be required to pay double those amounts as a civil penalty. Additionally, violators could be required to pay the aggrieved employee’s lost wages and reasonable attorneys’ fees.

That’s not all. As an alternative to pursuing an administrative action, aggrieved employees may elect to sue their employer for the foregoing civil penalties, compensatory damages, appropriate equitable relief, reasonable attorneys’ fees and costs, and any other relief that the court deems appropriate.

The DC Office of Human Rights has yet to publish regulations implementing the Act or a template for the Act’s required notice.  So, there remain unanswered questions about how the Act will be enforced.  Still, many of the Act’s requirements are clear.  Employers should review their policies and practices carefully to ensure compliance. 

If you have questions, please contact the author or your regular ArentFox Schiff counsel.