OPINION:
Every day on my way to my office I walk around Washington Circle. Across the circle stands the George Washington University Hospital, one of the District’s premier medical facilities. Not surprisingly, frequently, as I walk through the circle, I encounter individuals dressed in hospital scrubs headed to their jobs.
On more than one occasion I have been distressed to note that some of these individuals have been enveloped in the acrid smoke generated by the cannabis joint they were smoking. These encounters have been quite distressing as I contemplated the vision of an individual high on cannabis participating in any manner in the rendering of hospital services. On these occasions, my silent hope has been that the individual’s supervisor will notice the odor of the cannabis and promptly dismiss the employee before he can render any services.
However, if the District of Columbia Council has its way, the implementation of my hope could soon be a misdemeanor.
Without much fanfare, the D.C. Council has adopted a city ordinance styled the “Cannabis Employment Protections Amendments Act of 2022.” The act effectively makes “cannabis” users a protected class. Employers will no longer be able to refuse to employ individuals who regularly use cannabis recreationally. And any effort to dismiss an employee who is high from cannabis use will be particularly daunting.
The act specifies that such a dismissal can occur only in very limited circumstances. Specifically, the act permits an action against an employee if the employee has used cannabis and the employee is in a position “in which it is reasonably foreseeable that an employee impaired from using drugs or alcohol would likely cause actual, immediate, and serious bodily injury or death.” Imagine an employer having the burden to establish that an employee “would likely cause serious bodily injury or death” and that this outcome was “reasonably foreseeable.”
Alternatively, the act allows a disciplinary action against an employee’s use of cannabis if the employee “manifests specific articulable symptoms while working, or during the employee’s hours of work, that substantially decrease or lessen the employee’s performance or those symptoms interfere with the employer’s obligation to provide a safe and healthy workplace as required by District of federal occupational safety and health law.”
The act does not define “specific articulable symptoms.” Nor does it indicate the means of measuring the decrease in the employee’s level of performance or how one can establish and preserve the proof of such symptoms after the fact. The ultimate result of any attempt to dismiss an employee on the grounds of cannabis use seems likely to be the assessment of a fine against the employer rather than the dismissal of the employee.
The act does purport to create some modest exceptions to its coverage, such as excluding “positions requiring the supervision or care of children, medical patients, or vulnerable persons.” However, it can safely be anticipated that the D.C. Department of Human Resources, empowered to enforce the act, will so circumscribe these exceptions that employers will be reluctant to invoke them.
It is bewildering that the D.C. Council would see fit to protect users of a mind-altering substance in the context of the rendering of services to an employer or to the public. It is especially so since the D.C. Council’s decision has been taken virtually simultaneously with the Biden administration’s decision to try to limit, if not totally eliminate, the nicotine from cigarettes because of the nefarious impact of nicotine on public health.
There should not be any illusion. The text of the act as passed by the D.C. Council will simply make any effort to curtail cannabis use while on the job much more difficult. It could be suggested that the only real beneficiaries of this new act will be the purveyors of cannabis.
The D.C. Council’s action is even more difficult to understand in light of the increasing evidence of the harm that cannabis use can and does cause. It is now increasingly recognized that the use of cannabis is addictive, mind-altering and particularly detrimental to pregnant women, the young and those with mental challenges. Any encouragement of such use is, therefore, highly undesirable.
Since all laws passed by the D.C. Council are subject to a review by Congress, there is still hope that this act will be stopped on Capitol Hill. Efforts should be exerted in that direction. However, in light of the priorities of the party, which, for the moment, still controls Congress, it is highly unlikely that Congress will impede the act.
It may very well be that Vice President Kamala Harris could cast the deciding vote that will make this act the law of the District of Columbia. This would be a dismal legacy for the vice president. Should she ever need assistance at a D.C. hospital, she might herself live to regret this legacy.
• Gerard Leval is a partner in the Washington office of a national law firm. He is the author of “Lobbying For Equality,” published earlier this year by HUC Press.
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