September 18, 2019
Mayor Muriel Bowser signed an order on Tuesday providing explicit protections for certain District employees who consume cannabis while away from the job. The new rules apply to all District government agencies under the direct administrative authority of the Mayor.
Under the rules, many would-be employees will no longer face pre-employment drug screenings. The order states: “Employees who are not in a safety-sensitive position will be tested for drugs only upon reasonable suspicion, or after an accident or incident. Thus, those employees not in safety-sensitive positions may find that they can use cannabis, with or without a medical card authorizing [it], so long as they are not impaired at work.”
Commenting on the policy change, NORML Political Associate Tyler McFadden said: “Employment protections are critical to ensure that law-abiding adults are not unduly discriminated against in their efforts to be productive members of society solely because of their use of cannabis while off the job. This order provides clarity and guidance to employers and peace of mind to the employees who work in the District of Columbia.”
For workers seeking safety-sensitive positions, the order states that those who test positive for the presence of cannabis on a pre-employment drug screen may be provided with a “second opportunity to take a drug test at least two weeks after the initial test results have been provided.”
In cases involving post-accident testing, a positive drug test result for cannabis metabolites will continue to be viewed as presumptive evidence of impairment. However, this “presumption may be overcome if the employee presents clear or convincing evidence that he or she was not impaired at the time of the test.”
Because THC’s primary metabolite, carboxy-THC is lipid soluble, residual levels of the compound may persist in urine for weeks or even months post-abstinence. According to the US Department of Justice, a positive urine test screen for drug metabolites “does not indicate abuse or addiction, recency, frequency, or amount of use; or impairment.”
Earlier this month, members of the DC City Council approved Act Number A23-0114: The Medical Marijuana Program Patient Employment Protection Temporary Amendment Act, which seeks to impose explicit protections for medical cannabis patients against workplace discrimination. It states: “A public employer may not refuse to hire, terminate from employment, penalize, fail to promote, or otherwise take adverse employment action against an individual based upon the individual’s status as a qualifying [medical cannabis] patient. … A qualifying patient’s failure to pass a public employer-administered drug test for marijuana components or metabolites may not be used as a basis for employment-related decisions unless reasonable suspicion exists that the qualified patients was impaired by marijuana at the qualifying patient’s place of employment or during hours of employment.” Like all District legislation, the act must undergo a 30-day Congressional review prior to taking effect.
Additional legislation seeking to strengthen employment protections for qualifying patients remains pending before the DC Council.
The full text of Mayor’s order is online here.
