The District of Columbia government provides its employees with a drug-free workplace and aims to actively discourage drug and alcohol abuse. As such, the Department of Human Resources provides ongoing guidance related to its drug and alcohol testing procedures. This instruction reiterates information concerning Initiative 71, addresses how medical marijuana is treated during the D.C. government’s drug and alcohol testing process, and outlines the requirements for employees must meet in order to use medical marijuana.
District voters approved Initiative 71, which legalizes the possession of minimal amounts of marijuana for personal use, in 2014. This initiative also approved the cultivation of marijuana. Specifically, adults who are 21 years of age or older may, within the interior of a house or rental unit that constitutes their principal place of residence, possess or grow marijuana plants. Initiative 71, which went into effect on February 26, 2015, does not apply to federal property in the District, and therefore possessing any amount of marijuana on federal property remains illegal. The sale and consumption of marijuana in public also remains illegal anywhere in the District.
Reasonable suspicion testing
The District of Columbia also enforces laws regarding drug and alcohol testing in the workplace. If an employer has “reasonable suspicion” that an employee is under the influence of drugs or alcohol, which adversely affects or could adversely affect an employee’s job performance or cause an accident or injury, the employer can ask that employee to take a drug test. The law expressly states that according to the law, employer’s may only utilize reasonable suspicion drug and alcohol testing under certain circumstances. Drug and alcohol testing is permitted when a supervisor has a reasonable belief that an employee is:
- under the influence of illegal drugs or alcohol;
- impaired in his or her ability to perform job duties due to the use of any drug (including prescription medication) or alcohol;
- in possession of any controlled substance or related paraphernalia while on duty;
- in possession of alcohol while on duty;
- in possession of alcohol in a District government vehicle.
Drug and alcohol testing is required after an employee is involved in a vehicular or other type of accident while on duty that results in personal injury, property damage, or both, and in which the cause of the accident could reasonably be believed to have been, in whole or in part, the employee’s use of drugs or alcohol.
Drug and alcohol testing is required after a covered employee who has tested positive for using a controlled substance in the workplace then completes drug or alcohol counseling and rehabilitation, and returns to work.
According to the law, employees must receive notice that they are subject to drug and alcohol testing. This notice needs to be provided at least thirty days prior to the start of testing. Employees must sign an acknowledgement that they received the appropriate notice. Refusal to sign is documented, after which the employer is permitted to proceed with testing anyway. At the end of the initial thirty-day notification period, all employees, excluding those who have disclosed a drug or alcohol problem and are participating in a counseling and rehabilitation program, are subject to drug and alcohol testing.
Employees who do notifiy employers that they have a drug or alcohol problem are provided one opportunity to seek treatment for this issue. These employees are not subject to drug or alcohol testing while undergoing approved treatment. In order to be exempted from drug or alcohol testing while undergoing treatment, an employee must disclose his or her drug or alcohol problem:
- within thirty days of receiving the company’s drug testing policy;
- prior to the employee being asked to submit to drug or alcohol testing.
Additionally, an employee who discloses a drug or alcohol problem within the allowable time period is subject to the following policies:
- the employee must receive a mandatory referral to the Employee Assistance Program (EAP) from the employer. The employee receiving a mandatory referral to the EAP must then follow the treatment plan developed by professionals and attend any drug or alcohol counseling and rehabilitation program that the EAP refers;
- the employee may be placed on medical leave, or the employee may be reassigned to a non-safety-sensitive position, if such a position is available, until he or she completes successfully any referred drug or alcohol counseling and rehabilitation program;
- the employee will not be subjected to drug or alcohol testing until after any drug or alcohol counseling and rehabilitation program is completed;
- before being permitted to return to work in any safety-sensitive position, the employee must successfully complete the drug or alcohol counseling and rehabilitation program;
- after the employer receives certification from the EAP that the employee has successfully completed the counseling and rehabilitation program, the employee shall be required to submit to drug and alcohol testing before returning to work;
- the employee must test negative for drugs and alcohol before being allowed to return to work in any safety-sensitive position;
- after successful completion of the counseling and rehabilitation program, the employee shall be required to participate in periodic follow-up testing.
Confidentiality of test information
All interviews, reports, statements, memorandum, and test results received by an employer through a substance abuse program must be held as confidential communications. Information received through an employer’s substance abuse program may be used or received in evidence, obtained in discovery, or disclosed in any civil or administrative proceeding. However, information and test results may not be released for use in any criminal proceedings against an employee or applicant.