The Marijuana Employment Protections Amendment Act of 2022, has officially gone live in July 2023. The Act prohibits employers from firing, failing to hire, or taking other personnel actions against individuals for use of cannabis during non-working hours.
However, not all employees will be protected under this new Act. In this article, we go over which jobs don’t qualify and your new rights as a DC employee as the ever expanding DC weed laws continue to shape our Nation’s Capitol’s cannabis community.
What is The Marijuana Employment Protections Amendment Act of 2023?
The Marijuana Employment Protections Amendment Act of 2022 (C.E.P.A.A.) is an Act signed by Mayor Muriel Bowser in 2022, and protects DC employees from being fired, failed to hire, or punished for using marijuana during non-working hours. The Act is set to go live July 2023.
If you are a DC medical marijuana patient or recreational user, your employer must now treat your use of cannabis the same way a patient with disabilities would use a legalized controlled substance such as prescription medicines.
Employment Protections for Cannabis in DC
The C.E.P.A.A protects DC workers from being penalized for using cannabis, participating in DC’s medical marijuana program, or any other state medical cannabis program whether using a DC medical cannabis card or through DC reciprocity.
After July 2023, employers can no longer penalize DC workers for the following:
- Hiring: Employers cannot refuse to hire an individual based on cannabis use.
- Firing/suspensions: Employers cannot fire or suspend employees from using THC.
- Promotions: Employers cannot deny promotions because an employee is using marijuana.
The new Congressional Act limits employers from testing for THC with employees, however if your employer sees job performance substantially decrease and suspect it to be from cannabis use in the work place, a drug test can be requested. If cannabinoid metabolites are found in the employees' system during work hours, which proves in inability to work, the employee can face disciplinary actions.
What you can’t do as an employee
While The Marijuana Employment Protections Amendment Act offers leniency for recreational and medicinal use of cannabis during non-working hours, there are still strict regulations set in place to also protect the employer from workers who engage in marijuana use during working hours.
If you are caught using cannabis during work hours, you no longer qualify for the Cannabis Employment protection. You don’t have to be caught red-handed with a joint in the company bathroom, either. If your employer sees signs or symptoms that substantially reduces your ability to function on the job, or if your job performance begins declining and the employer believes it to be cannabis related, then you can face disciplinary actions.
As an employee you cannot consume, possess, store, deliver, transfer, display, transport, sell, buy, or grow cannabis on the job, while working for an employer, or during the hours of work. This includes work from home occupations as well.
Safety Sensitive jobs do not qualify
There are exceptions to what type of employees are protected under this new Act. If the occupation is considered “Safety sensitive”, you can be reprimanded for cannabis use even during non-working hours.
Safety sensitive jobs refer to any job that, if the employee was under the influence of cannabis, could cause serious bodily injury or loss of life to oneself or others. There are no actual parameters as to what qualifies as a safe sensitive employment, as it’s entirely up to the employer to designate the occupation as safety sensitive.
Below are a few examples of safety sensitive occupations that do not allow DC workers to use cannabis without any repercussions from employers, or in other words, the jobs below do not qualify for The Cannabis Employment Protections Amendment.
Jobs that involve firearms or security
Metropolitan Police, security services, special police, security officers are all considered Safety Sensitive jobs. Many of these employees carry firearms or are task to protect civilians and will not qualify for The Cannabis Employment Protections Amendment. If you test positive during a urine test, you could risk losing your job and clearance.
Jobs that involve handling machinery
Anyone that must handle any heavy or dangerous equipment and machinery, such as DDOT (District Department of Transportation) and construction workers, will not qualify for the cannabis employment protections. Cannabis can impair motor functions and reaction time, which can endanger employees and co-workers in this field.
Jobs that require frequent driving
If your occupation requires you to be driving for the majority of the working hours, then it is considered a safety sensitive position. DC cannabis DUI laws do not allow for anyone to operate a car or boat while under the influence of cannabis. Uber drivers, limo drivers, and taxi cab drivers are all considered safety sensitive positions and will not qualify for cannabis employment protection.
Jobs near power or gas utility lines
Employees who must work on or near any power or gas utility lines, are considered safety sensitive occupations. If you work for Washington Gas, Direct Energy, or any utility company in DC, you may want to speak with your employer on whether your position is considered Safety Sensitive, as not all occupations within this field places you directly near the power or utility lines.
Care jobs do not qualify
If your job requires you to care for someone that cannot care for themselves, such as nursing homes or day cares, your job is considered Safety Sensitive and you will not qualify for cannabis employment protections.
Other jobs that fall under this category include anyone who resides in an institutional or custodial environment, where employees must care for patients that cannot care for themselves.
Certain medical jobs
Employees that must administer medications such as pharmacist or nurses will not qualify for The Marijuana Employment Act. Also included is any job in which you perform surgery or supervise the performance of a surgery will be considered Safety sensitive.
Included also is any job that requires professional medical credentials, which blankets much of the medical occupations in DC from RN’s, nurses, radiologist, doctors, chiropractors, and dentists.
Reporting employers for noncompliance
If you feel your employer has violated your rights under the new cannabis employment act, you have one year to report your case to the D.C Office of Human Rights.
Filing a complaint with the Office of Human Rights will include an extensive list of steps, detailed below:
- Intake: Once you issue your formal complaint, OHR (Office of Human Rights) will review whether the complaint has jurisdiction. If approved, OHR will docket the complaint for mediation.
- Mediation: If OHR determines your complaint has jurisdiction, a claim will be scheduled for mediation with 45 days after the complaint was docketed. All parties involved (employer, employee, and witnesses) will participate in the mediation process.
- Request for information: After the case is docketed, OHR can request any information it needs from all parties, which usually is the employers' response to the complaint and a rebuttal statement from the employee.
- Fact-Finding Hearing: if the mediation process cannot resolve the matter, within 20 days after the most recent failed attempt for mediation, OHR will serve both employee and employer a public fact-finding hearing under a hearing examiner. The hearing examiner will listen to both parties and submit a proposed decision to the director.
- Final Determination and order: The Director of the DC Office of Human Rights or the Director’s designee, will then issue the final determination
Any employer that is determined to have violated the C.E.P.A.A, by The Director of OHR may face civil penalties. The civil fines will be rewarded half to the employee and half will be deposited to the General Fund of DC. The civil fine will be based on the total number of employees the company has:
- $1,000 per violation (1-30 employees)
- $2,500 per violation (31-99 employees.
- $5,000 per violation (100 or more employees)
Employers may also be subject to pay for employer’s lost wages, pay reasonable attorney’s fees and cost, and pay double the civil penalties if the employer is found to be noncompliant in the past year.
The Cannabis Employment Protection Amendment Act finally allows DC employees to use recreational or medicinal cannabis during non-working hours, and not fear any reprimands from urine screens. However, the Act doesn’t cover many jobs that are classified as “Safety Sensitive”, such as DDOT, day care, or police offers.
The new Act primarily protects marijuana users during non-working hours, but will not protect DC workers from using cannabis, selling, transporting, growing, at the work place. If you feel your rights have been violated under this new Amendment Act, I advise you to speak to your local DC counsel, as all information provided here is for resource purposes only.