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On the Horizon: Broad Employment Protections for Marijuana Customers within the District of Columbia


Final summer time, the Washington D.C. Council unanimously handed a invoice that prohibits employers from refusing to rent, terminating, suspending, failing to advertise, demote, or in any other case penalizing any worker who makes use of marijuana, even when they fail a drug check. In October 2022, the invoice, known as the D.C. Marijuana Protections Modification Act of 2022, was signed by Mayor Bowser. The legislation goes into impact on or after July 13, 2023.[1] 

Beneath the Act, employers are typically prohibited from refusing to rent, firing, or taking different antagonistic actions towards workers for leisure marijuana use, participation in a medical marijuana program, or for failing a marijuana drug check. Nonetheless, employers will be capable to take motion towards workers for marijuana use if “the worker manifests particular articulable signs whereas working, or in the course of 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 intrude with an employer’s obligation to supply a protected and wholesome office as required by District or federal occupational security and well being legislation.”

The Act additionally amends the District of Columbia Human Rights Act to require employers to deal with a qualifying affected person’s use of medical marijuana for a incapacity in the identical method as it will deal with the authorized use of different managed substances prescribed by or taken below the supervision of a licensed well being care skilled (topic to some exceptions). 

Exceptions:

The legislation identifies a number of exceptions, together with: (1) exceptions for workers in “safety-sensitive” positions; (2) if an employer is required by federal statute, rules, contract, or funding settlement to ban marijuana use; or (3) if the worker used or possessed marijuana whereas performing work for the employer or in the course of the worker’s work hours.

A “safety-sensitive” place is an employment place designated by the employer through which it’s fairly foreseeable that the worker would seemingly trigger precise, quick, and severe bodily damage or lack of life to self or others in the event that they carried out their work duties whereas below the affect of medicine or alcohol. The Act provides examples of positions that qualify as safety-sensitive, together with positions requiring (1) common or frequent operation of a motorcar 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 legislation), (4) the supervision of, or provision of routine take care of, people who’re unable to take care of themselves and who stay in an institutional or custodial atmosphere, or (5) the administration of medicines, the efficiency or supervision of surgical procedures, or the availability of different medical therapy requiring skilled credentials.

Whereas the legislation will apply to most workers, workers of the federal authorities and the DC courtroom system are excluded from the scope of the Act. Nonetheless, the Act will supply protections for different authorities workers inside the District.

Worker Complaints:

Beneath the Act, aggrieved workers can have numerous cures: (1) submitting a grievance with the Workplace of Human Rights; (2) bringing a personal reason for motion (leisure marijuana customers should first exhaust their administrative cures with an OHR grievance); and/or (3) submitting a grievance with the Legal professional Normal.

An employer who’s discovered to have violated the Act may face civil penalties, together with compensatory damages, misplaced wages, different equitable reduction, and lawyer’s charges and prices. Civil penalties embody the next: for employers that make use of 1 to 30 workers, a tremendous of as much as $1,000 per violation; for employers that make use of 31 to 99 workers, a tremendous of as much as $2,500 per violation; and for employers that make use of 100 or extra workers, a tremendous of as much as $5,000 per violation. The penalty can be doubled for employers who violate the Act greater than as soon as within the 12 months.

Employer Obligations Wanting Forward:

Inside 60 days of the legislation changing into efficient, employers can be required to inform staff of their rights, together with if the employer has designated a employee’s function as safety-sensitive, and the employer’s protocols for drug and alcohol testing. This discover have to be offered to all new hires upon employment and to workers yearly. Moreover, employers ought to assessment their drug and alcohol insurance policies to make sure they adjust to the Act.

FOOTNOTES

[1] The Act won’t go into impact till its fiscal impact is included in an accepted finances or July 13, 2023, whichever is later.

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