DC Grapples with Cannabis Use Workplace Protections
By Laila Makled, National Cannabis Festival
When adult use cannabis sales begin in Illinois on January 1, 2020, more than ⅔ (68%) of all Americans will be living in a state with some form of legal cannabis, according to New Frontier Data. As legalization advances and an increasing percentage of the workforce becomes legal cannabis consumers, employees and advocates are starting to see momentum in evolving workplace substance abuse policies in legislation, science and the courts.
From 2010-2016, a series of court cases ruled in favor of the employer, stating medical cannabis users are not protected under their state’s medical cannabis law if the patient tests positive in a drug test. However, recent court opinions suggest that tides are turning, with employees increasingly being protected over the employer. To avoid such court battles, a growing number of states are also writing employment protections into their cannabis legislation.
In D.C., tension surrounding workplace accommodations for cannabis users has been on the rise. In June 2019, the DC City Council announced emergency legislation that protected a limited number of prospective and current city employees from being hired or fired based on their medical marijuana patient status, so long as they only medicated after work hours. However, there was lingering confusion over who exactly was protected, with city employees continuing to receive threats of job loss for using medical cannabis after work hours. To provide clarification, Mayor Muriel Bowser announced a new marijuana policy for city workers that states that city agencies cannot create their own policies with respect to employee cannabis use. Additionally, whether used medicinally or recreationally, marijuana use cannot prevent a person from getting or keeping a government job if it is used after work hours.
“It’s really a recognition that, as we make cannabis use policies for the District of Columbia and its residents more equitable and fair and just and safe, we want our human resources policy to be reflective of those values,” says Jay Melder, the assistant city administrator of D.C.
Although this clarification is progress, especially in regards to including both medical and recreational consumers, the rule stops short of protecting what the DC government classifies as “safety-sensitive” workers, subjecting these employees to random drug testing with no protections for cannabis use. Many “safety-sensitive” jobs require carrying a gun or operating machinery — employees who drive street sweeper vehicles, for example. The exceptions and restrictions seem reasonable in theory, but they still focus on cannabis use v. job performance and the rules are not applied equally. As a result, we are still seeing dire consequences for those categorized as having safety-sensitive jobs.
One of those affected employees is Phil Hedgeman, a former Department of Public Works (DPW) employee. Mr. Hedgeman drove street sweepers for DPW, and says things started to go downhill in October 2018 when human resources started having a series of meetings informing DPW employees of new suitability standards with the district government.
“I noticed in those meetings they kept telling us we couldn’t be a medical marijuana patient or use CBD. That would come up in our urine. I was already a medical patient and I kind of went and did some research and I decided to approach DPW and let them know I was a medical marijuana patient.”
According to Hedgeman, after he disclosed that he was a medical cannabis patient, DPW said he wasn’t allowed to drive anymore, but that he could work as a labor sanitation worker which does not require operating machinery. Unfortunately, those jobs were also labeled as safety-sensitive, and have a zero tolerance policy for testing positive for cannabis. In fact, all DPW sanitation workers are considered safety sensitive, regardless of whether they’re driving a vehicle or operating heavy machinery. From October 2018 until April of 2019, DPW assigned Mr. Hedgeman to jobs where he was left to sit around as he waited for the department to make a decision on when and how he could start working again. Finally, in May of 2019, DPW said he had 30 days to find an alternative medicine or he would be put on administrative leave without pay.
The problem for Hedgeman and those like him is that cannabis is the alternative medicine. He has a degenerative back disc that causes painful back and muscle spasms. After years of taking prescribed medications and feeling their negative effects, he decided to try and start self medicating and learning more about cannabis.
“It’s the only thing that really helps,” he said, “It was one of those things, you have to fight for what you want. Even with something as big as the DC government, I was pretty confident that I was right or had a fight.”
The American Civil Liberties Union of DC (ACLU of DC) thinks people like Mr. Hedgeman have a fight too. Just last week, the ACLU of DC teamed up with Doretha Barber, a former DPW employee, to file a lawsuit against the city. The lawsuit claims she was discriminated against by the DPW for her participation in D.C.’s medical marijuana program as a scoliosis patient, where she found solace from a life with chronic pain. Barber is a sanitation worker for the city, and most of her job consists of using a rake to collect trash and leaves.
“People shouldn’t have to choose between their medicine and their job. The D.C. Human Rights Act requires employers to make accommodations for people with disabilities that would allow them to continue working while being treated for their medical condition,” said Michael Perloff, Attorney, ACLU of the District of Columbia, “But this past June, after telling DPW that she used medical marijuana, Ms. Barber was put on leave and told she must pass a urinalysis before resuming her duties. In order to get back to work, she has stopped using her medicine, but the painful spasms have increased in frequency.”
DC Councilmember David Grosso, a medical cannabis patient himself, is working to pass the Medical Marijuana Program Patient Employment Protection Amendment of 2019. The bill was introduced in May 2019, and it would bar D.C. agencies from employment discrimination such as what Mr. Hedgeman, Ms. Barber and the ACLU of DC are claiming. On September 25th, the DC City Council heard from dozens of district residents, medical cannabis patients, business owners, doctors and unions regarding the bill.
“We believe CM Grosso’s bill would be a solution to Ms. Barber’s current predicament, and allow all District employees who use medical marijuana to continue doing so,” continues Perloff.
It is still unclear whether the bill will receive the support it needs for a vote in committee. If you would like to get involved, you can contact your city council member and reference the Medical Marijuana Program Patient Employment Protection Amendment of 2019.
“The people that we’ve heard from that have been impacted are doing mostly jobs that are the frontline jobs of manual labor,” says Grosso. “It’s interesting to me that they’ve put the effort into classifying positions and enforcing that mostly affect blue collar and African American workers in D.C.”