District of Columbia Council To Allow Some City Employees to Access Medical Marijuana (For Now)
While the District of Columbia (D.C.) has had a medical marijuana program on its books since 2013, there has been some debate regarding whether or not city workers are allowed to participate in the program, even if they have a written recommendation from a physician. Since 2016, it has been up to individual city government agencies to decide whether or not their employees can participate in D.C.'s medical marijuana program. This policy has led to disparate treatment of employees from one agency to another, even if they have the same medical conditions.
Some agencies, such as the D.C. Department of Public Works (DPW), have forbidden their employees from using medical marijuana altogether. This has reached a tipping point in recent weeks, when the agency sent a memo on May 28, 2019 to all employees utilizing medical marijuana stating that they had 30 days to obtain an alternate treatment.
However, on June 18, 2019, the D.C. Council passed an emergency bill that brought some much needed clarity to this issue, and that will hopefully ensure consistency across city government agencies. More specifically, the bill states that a public employer may not refuse to hire, terminate from employment, penalize, or otherwise discriminate in the terms or conditions of employment against an individual based upon the individual's status as a qualifying medical marijuana user. Medical marijuana advocates have criticized the D.C. Council for not going far enough in the bill, particularly with regard to the fact that many city employees in "safety-sensitive positions" are left unprotected. Notably, this still includes DPW employees, as well as D.C. Department of Corrections employees.
The emergency bill will remain law for a period of 90 days, while a permanent version of the law is considered by Council members.
D.C.'s action comes on the heels of New York City and Nevada passing laws that prevent employers from denying employment based exclusively on medical cannabis use, presuming the employee is a valid medical cannabis cardholder. Our analysis concerning each of those respective laws can be found by clicking the links above.
As an ever-growing number of states authorize cannabis for medical use, and in some cases, adult use -- currently, 33 states have medical cannabis programs, and 11 of those states also have also established adult-use programs (not including D.C.'s "gifting" program) -- employers will continue to face tough questions on a myriad employment law issues. If you have any questions about an issue raised in this post, or with regard to employment law compliance related to medical cannabis cardholding employee matters, please contact the authors or the attorney at the firm with whom you are regularly in contact.