DC EMPLOYMENT LAW ALERT

DC Council Moves toward Employment Protections for Medical Marijuana Users

Latest effort limited to government workers

By Donn C. Meindertsma

Unlike several states, the District of Columbia has not adopted employment protections for workers who are registered medical marijuana users. Rather, as voter initiatives and the DC Council have relaxed traditional bans on or penalties for marijuana use, very little has been said about whether marijuana users enjoy protections from adverse job actions. Private-sector employers in the District may enforce policies that prohibit marijuana use, and they may discipline or discharge employees for, say, being under the influence of marijuana or failing a drug test (see Additional Reading sidebar).

For local government workers, however, the rules are different. For example, the District’s policy is to require agencies to offer accommodations to workers for medical marijuana use. In other words, medical marijuana is generally treated like any prescribed medication for workers who hold a District-issued registration card.

Last month, the DC Council approved the Medical Marijuana Program Patient Employment Protection Emergency Declaration Resolution of 2019 (Res. 23-136, June 18, 2019). According to the resolution:

Aside from the need to prohibit intoxication in the workplace or any interference with a medical marijuana patient’s job duties, there is no rationale for penalizing, terminating, or refusing to hire a patient purely for a positive test result for marijuana, except when required by federal law.

A medical marijuana patient should not be treated any differently for the purposes of employment with the District of Columbia government than any other employee with a medical condition, particularly in light of the current wave of opioid addiction and overdoses and the evidence showing that use of medical marijuana reduces reliance on opioids and reduces opioid overdose rates.

According to statements made during the Council session in which it was approved, the resolution was needed because agencies were not uniformly enforcing the District’s HR policy permitting government workers to use medical marijuana. The resolution does not permit workers to use or be under the influence of marijuana on the job, and it excludes workers who are in safety-subject positions. Those workers remain subject to pre-employment and random drug testing.

Legislation corresponding with the resolution was also recently introduced. The bills (B23-335, B23-336) provide in part:

[A] public employer may not refuse to hire, terminate from employment, penalize, fail to promote, or otherwise take adverse employment action against an individual based upon the individual’s status as a qualifying patient unless the individual used, possessed, or was impaired by marijuana at the individual’s place of employment or during the hours of employment.

A qualifying patient’s failure to pass a drug test for marijuana components or metabolites administered by a public employee may not be used as a basis for employment related decisions unless reasonable suspicion exists that the qualified patient was impaired by marijuana at the qualifying patient's place of employment or during the hours of employment.

Another recently introduced bill would change the law on pre-employment drug testing for marijuana, including in the private sector. Currently, employers may test applicants who have received a job offer. The proposed bill would ban that practice (Prohibition of Marijuana Testing Act of 2019, B23-0266). The bill includes exemptions for certain safety related jobs and jobs connected to federal contracts or employment.

The Council plans to take up these bills in the fall, with hearings expected to begin in September.

To repeat, the resolution and proposed legislation on employment protections pertain only to public employers, not to the private sector. However, this limitation does not mean that private employers can ignore it. It would be a simple and foreseeable step for the DC Council to expand these measures to private sector employers, relying on the same rationale used to support the recent resolution. Specifically, the resolution’s argument that “there is no rationale for penalizing, terminating, or refusing to hire a patient purely for a positive test result for marijuana (other than to comply with federal law or to prohibit workplace intoxication or impairment) could easily be applied to the private sector. And, notably, that rationale could apply not only to medical marijuana users, but also recreational users: if there is "no reason" to penalize a "patient," why should employers be permitted to penalize recreational users?

This is precisely how the slippery slope theory works. Employers concerned about those prospects should make their concerns known now.

Please let us know if you have any questions about these developments or what they may mean for your workplace.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.

Donn Meindertsma is a partner in the Washington, D.C. office of Conner & Winters. For more than 30 years, he has represented employers in the District of Columbia and elsewhere in defending against employment litigation and in providing counseling to clients on labor and employment law compliance and risk management. He is a member of the firm’s Labor and Employment Practice Group.

The following excerpts are from Marijuana and the District of Columbia: A Comprehensive Guide for Employers (2018)

At present, a company policy that prohibits employees from any marijuana possession or use—whether at work or at play—is wholly defensible. Employers may therefore notify employees that only those who refrain from using marijuana are allowed to hold jobs and may decline to hire applicants who are known to use marijuana (p. 91).

The District of Columbia Council has already amended its marijuana laws several times. Further proposals to make marijuana even more accessible are likely. This trend may very well require employers to reassess their own policies on a regular basis. It is certainly within the realm of possibility, for example, that the Council might add employment protections for marijuana users. Laws in some other jurisdictions already include those protections. Employers must, therefore, remain knowledgeable about developments in the “law of marijuana.” And they must consider whether those developments require them to modify their workplace policies. Doing so is the best way to mitigate risks associated with employment claims (p. 117).

In May, a Council Member introduced a comprehensive bill to establish a legal marketplace for recreational and medical marijuana use, at the request of Mayor Bowser. This proposal, known as the Safe Cannabis Sales Act of 2019, would rechristen the District’s alcohol regulation agency as the Alcohol Beverage and Cannabis Administration (ABCA) and would authorize the agency to regulate and license the cultivation, distribution, sale, and use of marijuana. Essentially, the legislation would regulate marijuana along the same lines as alcohol. If passed, this proposal could also put pressure on the District to mandate employment protections in the private sector. Of course, at the federal level, marijuana use of any kind remains illegal. (More on B23-0280)