Thursday, July 14, 2022

DC Employers Take Note of the District’s New Law on Off-Duty Marijuana Use

 By Jessica Summers

In 2015, DC legalized possession of small amounts of marijuana.  But unlike many jurisdictions which have legalized marijuana or other cannabis products, DC law was silent about whether employers could discipline employees for lawful off-duty use of the substances – until this summer.  In June, D.C. Council passed the Cannabis Employment Protections Amendment Act of 2022 which prohibits employers from refusing to hire, terminating or disciplining employees for using cannabis, being a medical cannabis program patient or having a drug test detect cannabis in their system. 

There are certain exceptions in the law.  Employers are not prohibited from taking any of the aforementioned actions if (1) the employee involved is in a safety sensitive position, (2) the employer’s actions are required by a federal law, federal regulation, federal contract or funding agreement (for example, if a federal contract requires drug testing of employees), (3) if the employee “used, consumed, possessed, stored, delivered, transferred, displayed, transported, sold, purchased, or grew cannabis at the employee’s place of employment, while performing work for the employer, or during the employee’s hours of work”, or (4) if the employee is impaired by cannabis during work hours in a manner that “substantially decreases or lessens the employee’s  performance of the duties or tasks of the employee’s job position” or in a way that interferes with health and safety.  For the purposes of these exceptions a “safety sensitive position” is one where the employer determines that “it is reasonably foreseeable that, if the employee performs the position’s routine duties or tasks while under the influence of drugs or alcohol, he or she would likely cause actual, immediate, and serious bodily injury or loss of life to self or others”.  The law includes a number of examples of types of positions that would meet these qualifications.

  • In addition to the restrictions identified above, there are a few important things for employers to note about this new law:
  • The law is focused on off-duty use. It does not prohibit employers from terminating or disciplining employees who use or possess cannabis products at work (or require the employer to accommodate use or possession). 
  • It also does not prohibit employers from taking action where an employee’s off-duty use results in intoxication that interferes with health and safety or the performance of the employee’s job. 
  • However, the law does mandate that employers consider a patient’s medical marijuana use to treat a disability in the same manner as it would treat any other use of a legally controlled substance prescribed by a health care professional and it amends the District of Columbia Human Rights Act accordingly.  In other words, employers must be very careful with medical marijuana users and engage in an interactive dialogue and accommodation analysis if a worker is using marijuana as prescribed by a physician.  For example, an employer may need to adjust the start time for an employee who needs to use cannabis in the morning so that its impairing effects have subsided by the start of work if doing so does not impact the essential functions of the job.

 This law applies to private employers as well as the D.C. government. It does not apply to the D.C. court system or the federal government. It will be administered by the District of Columbia Office of Human Rights (DC OHR) and anyone alleging a violation of the law will have to file a claim with the DC OHR prior to filing a lawsuit.  Employers can be liable for payment of lost wages, reinstatement of the employee and the employee’s reasonable attorneys’ fees, among other things, for violating the law.

There is also a notice requirement.  Employers must notify all employees of their rights under the act, specifically notify any employee who is designated as “safety sensitive status,” and notify all employees of all protocols for drug and alcohol testing (1) when the law becomes effective; (2) upon hire, and (3) annually thereafter.

In accordance with the restrictions placed on DC, the U.S. House and Senate have a 60 day period to review and enact a joint resolution to disapprove of the new law.  If President Biden were to approve a joint resolution of disapproval, the law would be blocked from going into effect.  While this Congressional disapproval period won’t expire until August, it is unlikely that Congress and President Biden will disapprove of this law and the law is expected to become final.

Wednesday, July 13, 2022

What You Need to Know About Maryland’s New Family Leave Law

By Jessica Summers

This year, Maryland joined the growing number of states and localities that have implemented paid family leave programs.  The Maryland Time to Care Act of 2022 will establish a state fund to provide paid leave benefits for employees who need to take time away from work for certain specified reasons.  The new Maryland program follows a similar structure to the DC paid family leave program that went into effect in 2020.

Understandably, employers and employees have many questions about the new law.  The Maryland Department of Labor (MD DOL) is expected to issue its first round of regulations on the new law next summer.  While there are still a number of unanswered questions to be resolved and details to be hammered out, here’s what we do know about how the new law will work: 

Wednesday, July 6, 2022

Tip Credit Ending in DC?

 By Scott A.Mirsky

    The elimination of the tip credit is back on the ballot for DC residents in November.  Initiative 82, if passed, would eliminate the tip credit over a five-year period and require DC employers to pay all employees the non-tipped minimum wage by July 1, 2027, as follows:

Monday, March 21, 2022

Are Employee Arbitration Agreements On Their Way Out?

By Jessica Summers

Over the last month, there have been a few significant developments that employers should be aware of when it comes to the use and enforceability of arbitration agreements.  As summarized below, for the time being, employee or contractor arbitration agreements are still enforceable in most contexts.  However, further changes may be on the horizon.

Friday, January 14, 2022

The Supreme Court Struck OSHA’s Vaccine Rule - Now What?

By Jessica Summers 

The tumultuous tale of OSHA’s Emergency Temporary Standard (ETS) on COVID-19 appears to have come to an end.  On Thursday (January 13, 2022), the Supreme Court reinstated a nationwide injunction preventing the ETS from going into effect – for all intents and purposes killing the rule.  As discussed in our prior blogs, the ETS would have required employers with 100 or more employees to establish and implement certain COVID safety protocols and require that all employees be vaccinated or submit to weekly testing.  So, what now?

Thursday, December 30, 2021

What is the Status of OSHA’s Vaccine Rules?

By Jessica Summers

For employers with 100 or more employees, the saga and uncertainty behind OSHA’s Emergency Temporary Standard (ETS) on COVID-19 continues.  As detailed below, while there is still a chance that the Supreme Court will strike down the ETS, covered employers should be actively preparing to comply with the ETS by the new January 10 and February 9 deadlines to avoid being caught in a last minute scramble. 

Here’s a breakdown of what has occurred so far: 

Thursday, November 18, 2021

What Now With OSHA’s Vaccine Rules? Your Questions Answered

By Jessica Summers

The news has been abuzz with stories about the wave of legal challenges to OSHA’s recently released Emergency Temporary Standard (ETS) on COVID-19.  The ETS’ first set of requirements were slated to go into effect on December 5, but now it is unclear where things will stand on that date.  This has understandably left many employers confused and questioning what actions they should be taking at this time.

So let’s try to break things down and get some clarity–