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The District of Columbia legalized hashish for medicinal functions in 2010 and started to allow people to make use of the drug recreationally in 2015. Final month, on July 13, 2022, Washington, D.C. Mayor Muriel Bowser signed the “Cannabis Employment Protections Amendment Act of 2022” (D.C. Act 24-483), becoming a member of the rising listing of jurisdictions prohibiting most employers from taking hostile motion (e.g., rejecting job candidates or terminating staff) for off-duty hashish use. The invoice should undergo a congressional evaluate interval earlier than changing into regulation.
Concerning the Act
What employers might not do:
The Act will make it illegal for many employers to refuse to rent, terminate, or take different hostile employment motion primarily based on (1) a person’s use of hashish or standing as a medical hashish program affected person or (2) the presence of cannabinoid metabolites within the particular person’s bodily fluids in any drug take a look at, absent “further components indicating impairment.” On the latter level, an employer can take motion in opposition to an worker for hashish use if “the worker manifests particular articulable signs whereas working, or throughout the worker’s hours of labor, that considerably lower or reduce the worker’s efficiency of the duties or duties of the worker’s job place,” or if such “particular articulable signs intervene with an employer’s obligation to supply a secure and wholesome office as required by District or federal occupational security and well being regulation.”
How employers should consider medical hashish use:
The Act additionally amends the District of Columbia’s medical hashish regulation to require most employers to deal with a qualifying affected person’s use of medical hashish for a incapacity in the identical method as it will deal with the authorized use of different managed substances prescribed by or taken underneath the supervision of a licensed well being care skilled (topic to slender exemptions).
Sure positions are exempt:
These protections don’t apply:
- If the worker will work in a safety-sensitive place, which implies a place, as designated by the employer, the place it’s fairly foreseeable that if the worker performs the place’s routine duties or duties whereas underneath the affect of medicine or alcohol, the worker will seemingly trigger precise, fast, and severe bodily harm or lack of life to self or others. The Act offers examples of positions that qualify, together with sure safety positions and positions requiring (1) common or frequent operation of a motorized vehicle or heavy or harmful gear or equipment, (2) common or frequent work on an energetic development website or occupational security coaching, (3) common or frequent work on or close to energy or fuel utility traces or dealing with hazardous supplies (as outlined by District regulation), (4) the supervision of, or provision of routine look after, people who’re unable to look after themselves and who dwell in an institutional or custodial setting, or (5) the administration of medicines, the efficiency or supervision of surgical procedures, or the availability of different medical remedy requiring skilled credentials.
- If the employer is required to behave underneath a federal statute, federal laws, or a federal contract or funding settlement. Because the Drug-Free Office Act doesn’t require and even point out drug testing, authorities contractors might want to level to particular drug testing mandates to depend on this exemption.
All of because of this pre-employment hashish testing is prohibited, absent one in every of these slender exceptions.
Employers can keep an affordable drug-free office coverage that:
- Requires post-accident or cheap suspicion drug testing of all staff or random drug testing of safety-sensitive employees;
- Is important to adjust to federal regulation or a federal contract or funding settlement, if relevant to the employer; or
- Prohibits impairment (as outlined above) or the use, consumption, possession, storage, supply, switch, show, transportation, sale, buy, or rising of hashish on the worker’s place of employment, whereas performing work for the employer, or throughout the worker’s hours of labor.
Employers should present staff:
- Discover of their rights underneath the Act, which can be ready by the Workplace of Human Rights;
- Discover that an worker’s place has been designated as safety-sensitive (if relevant); and
- The protocols for any drug and alcohol testing the employer performs.
Employers should present this data to staff: (1) inside 60 days after the date the Act turns into “relevant”; (2) on an annual foundation thereafter (for incumbents); and (3) upon rent of a brand new worker.
The Act won’t be “relevant” till its fiscal impact is included in an authorized price range or July 13, 2023, whichever is later.
Aggrieved people can:
- File a criticism with the Workplace of Human Rights;
- Deliver a personal reason for motion (leisure hashish customers should first exhaust their administrative cures with an OHR criticism); and/or
- File a criticism with the Lawyer Common.
If an employer is discovered to have violated the Act, it might face civil penalties, together with compensatory damages, misplaced wages, different equitable aid, and lawyer’s charges and prices.
Subsequent Steps for Employers
The District of Columbia joins the rising listing of jurisdictions making it harder for employers to take care of a drug-free office and drug testing coverage, particularly within the context of pre-employment testing. As an example, New York’s Division of Labor lately issued “Frequently Asked Questions,” which take the place that pre-employment hashish assessments are prohibited besides in very slender conditions. Additional, most Philadelphia employers are actually prohibited from requiring potential staff to endure testing for the presence of hashish as a situation of employment.
We anticipate this pattern to proceed. And with most Individuals supporting legalization on the federal stage, employers are beginning to consider whether or not to alter their strategy to an more and more in style drug that’s authorized for medicinal or leisure use in most states. This quickly evolving authorized panorama presents new challenges for employers, particularly multi-state employers. Employers should steadiness complying with conflicting federal, state, and native legal guidelines, sustaining a secure work setting, and defending candidates’ and staff’ privateness and different authorized rights.
Within the meantime, employers with places or staff within the District of Columbia ought to contemplate reassessing their office drug testing insurance policies and practices to make sure they adjust to the brand new Act.
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