D.C. Employers Can No Longer Punish Most Workers for Cannabis Use

Unfortunately for many cannabis connoisseurs, just because the substance is legal to possess and consume doesn’t mean you can’t lose your job over enjoying marijuana in your free time. In many areas that have legalized marijuana for recreational use, employees have found that they can face disciplinary actions from their employers just for using cannabis in their off time.

A new law taking effect in Washington, D.C., seeks to ban private workplaces from firing or punishing employees who use marijuana during non-working hours. Workers applaud the measure because it gives them the freedom to enjoy their leisurely pursuits without fear of repercussions from their employers.

Law Protecting Workers Who Consume Cannabis Takes Effect

It has been a long and hard-fought road. Still, a Washington D.C. law went into effect banning most private workplaces from firing or punishing employees who consume marijuana during non-working hours.

The new law explicitly prohibits most private employers from “firing, failing to hire, or taking other personnel actions against an individual for the use of cannabis, participating in the medical cannabis program, or failure to pass an employer-required or requested cannabis drug test, unless the position is designated safety-sensitive or for other enumerated reasons.” However, individuals working in safety-sensitive industries or with children or patients can still face punishment for recreational cannabis use. There are also exceptions for workers contracted by the Department of Transportation, which has revised driver drug testing policies.

The new Washington, D.C. law expands on previous legislation protecting local government employees against workplace discrimination because of medical cannabis use. Employers must notify employees about the new policy change. Employers who violate the new Washington, D.C. law could face fines up to $5,000 and must pay the employee’s lost wages and attorney’s fees.

Washington, D.C., seems to be following in California’s footsteps. The Golden State passed AB-2188 prohibiting most employers from penalizing or discriminating against workers and applicants who use cannabis off the clock. However, California’s law does not take effect until January 2024, giving employers time to review their drug testing policies to determine if current practices rely on detecting nonpsychoactive cannabis compounds for hiring or firing.

Washington State Governor Jay Inslee (D) has also signed legislation protecting workers from employment discrimination. The reform measure protects job applicants from hiring discrimination if they consume recreational cannabis outside of work, with exceptions for specific industries. However, the legislation still allows employers to maintain drug-free workplace policies and prohibit the use of marijuana by workers after being hired.

The Long Road to Worker Protections

The “new” Washington, D.C. law protecting employees who consume marijuana is not that new. The city council in Washington, D.C., unanimously passed the measure in 2022. The Cannabis Employment Protection Amendment Act stops employers from firing individuals who fail marijuana drug tests and bans employers from refusing to hire employees because they consume recreational marijuana. Mayor Muriel Bowser (D) signed the legislation, but the measure prompted a 60-day congressional review period.

Congress could have overturned the local policy before it could take effect. Although lawmakers opted not to block the measure, it was not inevitable that Congress would allow Washington, D.C., to proceed. Previously, Congress prevented the District of Columbia from spending its local tax dollars to legalize adult-use cannabis sales by adding a rider to the large-scale omnibus spending legislation in 2022 despite voters approving legalization in 2014. Local, state and national cannabis advocacy groups beseeched the U.S. attorney general to formally adopt a non-enforcement policy that would allow the District to move ahead with marijuana legalization sales despite the congressional ban.

Although the path toward recreational sales remains murky at best, Congress did allow a medical marijuana law to go into effect in March. The measure eliminates cannabis business licensing caps and provides tax relief to medicinal operators. It also creates new cannabis business categories, such as on-site consumption facilities and cannabis cooking classes. Finally, the Medical Cannabis Amendment Act also codifies that adults in D.C. can self-certify as medical marijuana patients. The policy is one potential workaround or loophole counteracting the federal rider preventing recreational cannabis sales.

What’s Next for Washington, D.C.’s Cannabis Market?

Although worker protections are heading in the right direction, what’s ahead for the District’s muddy recreational marijuana market? Currently, the federal rider preventing recreational marijuana remains in effect. Loopholes and “gifting” provisions offer workarounds while creating a confusing matrix of marijuana sales operations without actually selling marijuana. The gifting provision allows dispensaries to sell an item, like a sticker, T-shirt, or keychain, then gift the buyer an amount of cannabis equivalent to the purchase. A medicinal retailer could then sell a $100 t-shirt to an individual and give that person the equivalent of $100 in cannabis.

Lisa Scott, the President of the D.C. Cannabis Business Association, says the bewildering gray market for cannabis in Washington, D.C. is deeply absurd. Many in the industry contend they want more regulation and oversight, not less, and certainly not a murky hodgepodge of loopholes and workarounds.

Unfortunately, the federal stalemate between Democrats and Republicans keeps the rider in place, preventing D.C. from controlling its own destiny and enacting the will of the people. Voters across the country may have the ultimate say in changing the rider, as it may take a national election to shake up the internal makeup of Congress, shifting the balance of power towards leaders with a more progressive stance on cannabis legalization.

In the meantime, in Washington, D.C., retailers and consumers continue to exploit legal loopholes. At the same time, workers finally have the protection from discrimination they deserve.

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