Washington, DC - Considerations for Marijuana in the Workplace

Medical
Marijuana Law:

Recreational
Marijuana Law:

No Broad Laws
Legalizing Marijuana*:

*Marijuana is either totally illegal, or there may be laws decriminalizing possession, or use of marijuana, or, the state may have a CBD law legalizing THC at a level constituting marijuana-derived CBD.

Employer Concerns – Significant to Review

  • Both medical marijuana and recreational marijuana are legal in Washington D.C.
    • DC Initiative 59 legalized the use of medical marijuana for a wide variety of debilitating conditions.
    • DC Initiative 71 (recreational marijuana) simply legalized possession and personal cultivation but did not stipulate the regulations around marijuana retail sales and enforcement of those regulations. Retail sales of recreational marijuana are projected to begin January 1, 2024.
  • It is important to note that DC Initiative 71 modifies D.C. law only. Marijuana is still illegal under federal law, so it can be particularly risky to possess it on federal land – those in possession of marijuana could face federal penalties.
  • Private employers in D.C. may establish drug policies and take adverse action up to and including termination against employees who violate these policies.
  • (May 2021) D.C. laws do not require private sector employers to accommodate employee use of medical marijuana even if s/he is a registered medical marijuana patient.
  • A large portion of the D.C. workforce are public employees; employed by either the city (“District”) or the federal government.
    • Those employed by the federal government are obligated to treat marijuana as a schedule I drug and therefore possession and use are prohibited.
    • Washington D.C. government cannot refuse to hire, terminate, penalize, or otherwise discriminate against an employee based on their status as a medical marijuana patient, or, having a positive drug test result for marijuana (pre-employment or employee test) unless the individual used, possessed, or was impaired by marijuana while at their place of employment or during employment hours.

      This does not apply to either employees in “safety sensitive positions” or to those who are required to undergo drug testing as a federal requirement.

      Nothing in this law (Code of the District of Columbia, Section 32-931), “Prevents the employer (public other than federal) from denying a position based on a positive test for marijuana.”

    • Under an Administrative Issuance by the Mayor of Washington D.C. issued in 2019: (It is unknown if this is still relevant and should be checked with knowledgeable counsel.)
      • All District employees are still subject to reasonable suspicion, post-accident and impairment testing of marijuana.
      • Annually, sensitive positions will be reviewed and designated within an agency:
        • Safety-sensitive District workers are prohibited from using marijuana (medical or recreational) products and are subject to random testing,
        • Protective-sensitive District workers – (i.e., teachers, social workers) pre-employment testing panel does not include marijuana, but they are subject to random testing (and marijuana is included), and
        • Security-sensitive District workers – (i.e., positions with access to secure information, cyber security) have no pre-employment or random testing that includes marijuana.

Testing

  • See Significant above.
  • An employer may only test for marijuana after a conditional offer has been extended unless otherwise required by law.
  • There will be presumed impairment when a reasonable suspicion or post-accident test determines a positive marijuana test result unless a “higher quality impairment test,” taken immediately, indicates otherwise.
  • (Administrative Issuance Mayor 2019 F (8)) “No District employee shall be forced to take a blood test for the presence of cannabis, except as may be required by law following an accident or incident.”

Hiring/Termination

  • It is unknown if the following regulations are still in effect. Check with knowledgeable counsel.
    • The following practice will be enforced for an unknown period of time due to a current shortage of prospective employees (even safety-sensitive positions), unless otherwise authorized by the District: If a prospective employee tests positive for only marijuana and was not in possession of, or impaired by marijuana, at the time of testing, the agency must give the appointee a second opportunity to drug test at least two weeks later. Failing a second drug test will result in disqualification from employment in a District safety-sensitive position for one year.
    • Safety-sensitive job applicants for the District may not be disqualified because they are enrolled in the medical marijuana program.
    • Safety-sensitive employees are prohibited from testing positive for marijuana on any test.

Discipline

  • See Significant above.
  • Safety-sensitive District workers are prohibited from using marijuana products and will face discipline for testing positive for any substance containing more than 0.03% THC.
  • A refusal to test constitutes a positive drug test result, making the donor subject to administrative action.

Use/Possession

  • Smoking is permitted.
  • Use in patient’s home or private property is permitted, but not in public.

Other Impacting Laws

(e.g., drug testing, workers’ compensation, unemployment)
  • If termination is the result of gross misconduct occurring in the employee’s most recent work, the employee shall not be eligible for unemployment benefits.
  • Misconduct includes intoxication or impairment from alcohol, controlled substance or other intoxicant, or the use or possession of a controlled substance.
  • If a workplace injury was occasioned solely by the individual’s intoxication, it is not compensable.
  • If a driver refuses to submit to a drug test, their license will be revoked for 12 months and that fact of their refusal will be submitted as evidence of guilt in a court of law.

Sources

(e.g., Bill Number, Authority)
  • DC Initiative 59 – Medical marijuana
  • DC Initiative 71– Recreational marijuana
  • DC Code 32-931 – Medical and recreational marijuana
  • D.C. Act Number A23-0114: The Medical Marijuana Program Patient Employment Protection Temporary Amendment Act – Medical marijuana
  • DC Code 7-1671 et al – Medical marijuana
  • Administrative Issuance by the Mayor of Washington D.C. issued in 2019 – Marijuana related (may not still be in effect)
  • DC Law 15-353, Child and Youth, Safety and Health Omnibus Amendment Act of 2004 – Protective-sensitive/marijuana related
  • Swaw v. Safeway, Inc. No. C15-939 (W.D. Wash. Nov, 2015) – Case decision around accommodation
  • DC Code 51-110 – Unemployment related
  • DC Municipal Regulations 7-312.4 – Unemployment related
  • DC Code 32-1503 – Workers’ compensation related
Disclaimer

This resource is designed to provide accurate information regarding the subject matter covered. It is provided with the understanding that those involved in the resource are not engaged in rendering legal counsel. If legal advice is required, the services of a competent professional should be sought.

Caution

Where there are quotation marks, the language is directly from published law. This information is only a summary of some issues and it will benefit the reader to review the information in context (go to the law) and in relation to other laws (e.g. workers compensation, unemployment law).

Other States Marijuana Considerations