The city council in Washington, D.C. unanimously passed a bill recently that would prevent employers from firing DC employees who fail cannabis drug tests if Mayor Muriel Bowser approves it to become law after a 60-day congressional review.
New Laws are Confusing the Workplace in D.C.
Weed delivery in D.C. makes cannabis-based products flooding the market, from cosmetics and oils to stress-relieving pills. However, even if they don’t get you high, they can cause work-related problems. If one of those primarily unregulated items includes THC, the same ingredient that gets marijuana users high, your job might be in jeopardy.
It’s unclear how many American workers have been fired or dismissed after testing positive for THC after using CBD products, but it’s a problem that’s certain to get worse.
CBD products could include a certain amount of THC as long as it doesn’t violate federal or state legal limitations. However, it could still contribute to positive drug test results, which an employer may deem inappropriate. In addition, some items may claim to be THC-free but mistakenly include the active compound.
Who Does the Bill Protect?
Except for employers who hire close relatives to undertake services around their home, the bill applies to practically all employers in D.C. Similarly; it covers practically all current and potential employees, including unpaid interns. However, those in safety-sensitive positions where cannabis use could foreseeably cause “actual, immediate, and serious bodily injury or loss of life to oneself or others” are not exempt from the testing requirements. Security employees, some medical professionals, vehicle and heavy machinery operators, construction site workers, power or gas utility workers, and those handling dangerous materials are all examples of such jobs.
Employers will not be considered to violate the law if they follow federal guidelines or if an employee consumes marijuana while at work or performing work-related functions.
According to the bill, “possession, storage, weed delivery, transfer, display, transportation, sale, purchase, or growing of cannabis in the employee’s place of employment” is prohibited.
What Restrictions Does the Bill Place on Employers?
Employers are prohibited from firing, suspending, failing to promote, demoting, refusing to hire, or otherwise penalizing an employee or prospective employee based on cannabis use. Status such as a medical cannabis program patient or the presence of cannabinoid metabolites in their system unless other factors indicate impairment
Employers: What Can They Do?
In some circumstances, employers can still test and sanction employees for cannabis use. Employers can, for example, test and sanction employees in safety-sensitive positions for cannabis use and ensure compliance with federal laws, regulations, and federal contracts or financing agreements. Employers can also require drug testing after an accident or if there is a strong possibility of misconduct.
Several states and municipalities, including Nevada, New Jersey, New York, Philadelphia, and Rhode Island, have laws and ordinances prohibiting employers from making cannabis testing a condition of employment. Employees are provided varying levels of protection under these laws. Some rules, such as those in Nevada and Philadelphia, are restricted to pre-employment testing alone. Several jurisdictions, however, effectively prohibit practically all cannabis testing, similar to the hot law of cannabis in D.C., awaiting the mayor’s approval. We expect more jurisdictions to implement similar legislation restricting or forbidding workplace testing as this is a rapidly evolving area of the cannabis law.
Employers should assess their policies for conformity with existing regulations and keep an eye on developments in the areas where they operate.