Last updated: December 4, 2023
If Mayor Muriel Bowser signs a recently passed bill into law, employers of the D.C. workforce will be changing their drug-free protocols and procedures.
It’s been nearly a year and a half since Councilmember Trayon White (D-Ward 8) introduced a bill that would benefit the District of Columbia’s (D.C.) pot-smoking employees. The bill originally titled the “Prohibition of Marijuana Testing Act of 2021,” was renamed the “Cannabis Employment Protections Amendment Act of 2022.” The district’s council members passed the bill on June 7th.
Marijuana is totally legal in Washington D.C.—and 19 states in the USA—but advocates continue to cry out that employment laws and practices requiring employee drug testing for current and prospective employees are behind the times. Pot-smoking people working in Washington D.C. may gain the benefit of those outcries if the mayor signs the bill into law because it would stop business owners from having the ability to fire employees who test positive for marijuana.
As a matter of fact, the bill also calls to ban employers from firing or refusing to hire an employee based on their recreational or medical marijuana use.
Except for the exceptions
Even though the District of Columbia has totally legalized marijuana, it still remains listed as a Schedule 1 substance on the United States Drug Enforcement Administration’s (DEA) list of illegal drugs.
The DEA defines Schedule 1 drugs, substances, or chemicals as follows:
“Drugs with no currently accepted medical use and a high potential for abuse. Some examples of Schedule I drugs are: heroin, lysergic acid diethylamide (LSD), marijuana (cannabis), 3,4-methylenedioxymethamphetamine (ecstasy), methaqualone, and peyote.”
Of course, that means that employers of the safety-sensitive workforce can keep testing for marijuana. They have no choice.
Those positions include:
- Security guards
- Construction workers
- Workers who operate heavy machinery
- Health care workers
- Gas or power company employees
Others who aren’t exempt from drug testing include anyone employed by the federal government and D.C.’s court system. However, other District of Columbia government employees are protected by the new bill and wouldn’t be forced to submit to a drug test—for marijuana anyway.
Other exceptions to the rule
Should the mayor approve the bill, there are other stipulations that will go into effect.
Possession, storage, delivery, transfer, display, transportation, sale, purchase, or growing of cannabis at the employee’s place of employment is strictly prohibited. Also, if employers can prove that an employee consumed marijuana at work or while they performed work-related duties, they can expect to be fired.
The bill also states that employers must evaluate the use of “medical marijuana to treat a disability in the same manner as it would treat the legal use of a controlled substance prescribed by or taken under the supervision of a licensed health care professional” on a case-by-case basis.
If the bill becomes law, employers have sixty days to notify all employees of their new rights. The notification also informs the employee whether or not they are working in a safety-sensitive position. This notification must be provided annually to current employees. New hires must receive their notification of these rights when coming on board.
Should an employer violate the law, the employee has up to one year from the date of noncompliance to file a complaint with the District of Columbia’s Office of Human Rights. An employer who violates the law could face fines of up to $5,000 and must pay the employee’s lost wages and attorney’s fees.
If mayor approved
Should Mayor Bowser approve the bill with her signature, it becomes law after a sixty-day congressional review. After which it would be published in the District of Columbia Register. Funding for the bill will also have to be worked out. Wherever the money comes from, taxpayers can expect to pay approximately $1.26 million over the next four years to fund the bill.
Is this the right call?
The public view on marijuana legalization is obviously changing. It was once thought smoking pot caused a myriad of adverse conditions. The majority of society claimed it was a “demon drug.” However, the majority of the population tends to look at marijuana as “harmless” these days. In addition, those who tout its medicinal benefits claim it relieves a host of symptoms too. They range from calming anxiety to treating the pain brought on by last-stage cancer.
As of April 2022, more than 13,000 D.C. residents had registered with the city’s medical marijuana program. This number is likely to continue to rise. Furthermore, the exact count of the number of D.C. citizens who use marijuana on a recreational basis is unknown, of course, but if legislation bans employers from firing or refusing to hire workers who test positive for the drug, that number is sure to increase as well.
The wrench in the works
The problem with ingesting marijuana in any form is that it causes impairment. Marijuana impairment affects thinking and motor skills. That means someone who uses the drug at work can have problems staying focused or are more clumsy than usual. When someone is high on pot, they could cause an accident.
However, marijuana remains in the system for days, weeks, or even months after someone last uses the drug. It depends completely on how often someone partakes. Therefore, if someone tests positive for marijuana, it doesn’t mean they are under the influence. As stated above, it could have been months since they used it. That’s why advocates want marijuana completely removed from company drug tests.
We need a test for current impairment. Several companies are working to finalize testing on a marijuana breathalyzer. Once that hits the market, employers will no longer feel as if they don’t have a leg to stand on. They will know in “real-time” if someone is under the influence of the drug while at work.
If you don’t have a reasonable suspicion protocol established, get one. It’s your best defense. It determines when you can require an employee to take a reasonable suspicion test.
With documentation to back up the charge, you can still come out on top even if a disgruntled employee tries to make waves by filing a complaint against you. Train your management teams to recognize the signs of marijuana impairment. And, trust them to keep their eyes open.
They won’t let you down.