Washington, D.C., recently introduced new rules concerning cannabis usage. These rules will soon prohibit employers from taking adverse action under specific circumstances. These new regulations will take effect on July 13, 2023, under the Cannabis Employment Protections Act, signed into law last year.

Prohibited Actions

The Cannabis Employment Protections Act prohibits employers from taking adverse action based on several cannabis-related crimes. Examples of adverse actions include denying or terminating employment. The cannabis-related causes include the following:

• The use of marijuana products;
• Status as a medical marijuana user; or 
• Testing positive for marijuana use without additional factors indicating job impairment.

As a result, employers may take adverse action in specific cases. For example, they must provide additional evidence proving the employee’s impairment while working. However, the new Act has set the bar high for proving impairment.

Employers must demonstrate that an employee exhibited “specific and articulable” symptoms of impairment. In addition, they must prove that the employee displayed these symptoms while performing their duties or during working hours. Employers must also prove that these symptoms noticeably impacted the employee’s performance. Finally, the employer must demonstrate that the symptoms prevented them from fulfilling their obligation to maintain a safe and healthy workplace.

What Can Employers Do?

Despite these changes, employers may prohibit using or possessing cannabis while working. The only exception is for medical marijuana users. As such, employers may adopt policies requiring drug tests due to workplace accidents. They may also test upon reasonable suspicion of impairment.

In addition, employers may test and take adverse action in cases when required by federal law, contract, or funding agreements. The Act also allows them to test for “safety-sensitive” positions that fit the law’s criteria. The law considers a safety-sensitive position as one that could reasonably foresee actual, immediate, and severe bodily injury or loss of life due to impairment. Such positions could include operating heavy machinery or motor vehicles. Examples of impairment include employees working under the influence of drugs or alcohol. 

Compliance with employment laws, including regulations like the Cannabis Employment Protections Act, is crucial. Similar to cannabis testing, many local, state, and federal legislators have enacted stringent requirements concerning background checks. For example, more states and municipalities have enacted Ban-the-Box restrictions.

The constantly changing regulatory environment has proven challenging for employers. As such, employers should collaborate with an experienced background screening provider to ensure compliance with all related laws. The right partner stays updated on the regulations, allowing employers to adhere to background-checking laws, employment protections, and other legal obligations.

JDP makes background checks easy and reliable. Speak with a compliance expert today.

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