As of September 2019, the District of Columbia has a new law that protects District of Columbia government employees who are medical marijuana users. Act Number A23-0114 is called The Medical Marijuana Program Patient Employment Protection Temporary Amendment Act.
The Act 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 unless the individual used, possessed, or was impaired by marijuana at the individual’s place of employment or during the hours of employment.”
The law does not apply to either employees in “safety sensitive positions” or to those who are required to undergo drug testing as a federal requirement.
Act Number A23-0114 specifically protects District of Columbia government employees who are medical marijuana users, but it does not protect private sector employees or federal employees who are medical marijuana users. Nationally, laws do not protect public or private sector employees who: 1) use or possess marijuana during hours of employment, and/or 2) are impaired by marijuana during hours of employment.
In the past, an employer could terminate an employee who tested positive for marijuana. The Americans with Disability Act (ADA) does not protect medical marijuana users and declares marijuana an illegal substance.
However, the current trend, in some state and local courts, is to protect employees who are registered users of medical marijuana due to a debilitating medical condition. This is particularly the case in states and localities where medical marijuana is legal and reasonable accommodation laws exist that specifically protect employees who are medical marijuana users.
Currently, the District of Columbia’s laws do not protect private sector employees who are medical marijuana users. A private sector employer could terminate an employee who failed a drug test for marijuana, even if the employee is a medical marijuana user. Whitmere v. Wal-Mart Stores, Inc., 359 F.Supp. 3d 761, 778 (Dist. Court, D. Arizona 2019); Coles v. Harris Teeter, LLC, 217 F. Supp. 3d 185, 188 (Dist. Court. District of Columbia 2016) (“As the courts in those cases concluded, the District here can at most be said to maintain a public policy that decriminalizes and allows the consumption of marijuana for private medical reasons. That is a far cry from prohibiting employers from terminating such users.”)
However, in light of Act Number A23-0114, which protects District of Columbia government employees who are medical marijuana users, one has to wonder whether a District of Columbia court, applying local laws, could determine that private sector District of Columbia employees who are medical marijuana users have similar protection.
- D.C. Health Medical Marijuana and Patients https://dchealth.dc.gov/page/patients
- D.C. Health Medical Marijuana Program: Patient Applications https://dchealth.dc.gov/service/medical-marijuana-program-patient-applications
- D.C. Health Medical Marijuana: Patient Application Forms (Electronic)://dchealth.dc.gov/publication/medical-marijuana-patient-application-forms-electronic
- D.C. Health Medical Marijuana and Integrative Therapy://dchealth.dc.gov/service/medical-marijuana-and-integrative-therapy
- DC Medical Marijuana://www.marijuanadoctors.com/medical-marijuana/dc/
- Mayor Muriel Bowser signed an order on Tuesday clarifying legal protections for certain District employees who consume cannabis while away from the job. https://norml.org/news/2019/09/19/washington-dc-mayor-signs-order-expanding-workplace-protections-for-cannabis-consumers
- BARBER V. DISTRICT OF COLUMBIA – DEFENDING EMPLOYMENT RIGHTS OF A MEDICAL MARIJUANA PATIENT
Bryan A. Chapman, Esquire