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Drug Testing Updates: Rhode Island and D.C.

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Marijuana remains a popular target for local and state legislatures with new laws being passed faster than ever before. Employers should review two jurisdictions—Rhode Island and the District of Columbia—that are further complicating the drug testing and workplace policy landscape.

Rhode Island Legalizes Recreational Marijuana

Rhode Island officially legalized recreational marijuana when S 2430 (“The Rhode Island Cannabis Act”) was signed into law.

Notably, the law does not require employers to accommodate the medical use of marijuana in the workplace, or otherwise permit the accommodate or use of any marijuana, including being under the influence of marijuana, while performing work—including remote work. The law also allows employers to implement drug use policies with prohibitions against use and possession during work. However, employers cannot fire or take other disciplinary action against an employee based solely on their private, lawful use of marijuana outside the workplace.

There are some exceptions provided including any federal law or regulatory requirements or if the employee is working in a job,occupation or profession that is “hazardous, dangerous or essential to public welfare or safety.”

The law also allows for the automatic expungement of certain marijuana convictions which will occur by July 1, 2024.

District of Columbia

D.C. also recently passed legislation that will impact employers via D.C. ACT 24-483, the “Cannabis Employment Protections Amendment Act of 2022.”

Under the new law, employers cannot refuse to hire, or otherwise impact an individual’s employment based on: (1) an individual’s use of cannabis; (2) an individual’s status as a medical cannabis program patient; or (3) the presence of cannabinoid metabolites in the individual’s bodily fluids in a required drug test without additional factors indicating employment.

The caveat to item three is further defined to mean the employee “manifests specific articulable symptoms” either while working or during the hours of work that substantially decrease or lessen the employee’s performance or interfere with an employer’s obligation to provide a safe and healthy workplace.

Employers are not required to permit or accommodate the use, consumption, possession, etc. of marijuana at the place of employment or during working hours (unless otherwise legally required to). Employers may also adopt a reasonable drug free workplace policy requiring post-accident or reasonable suspicious drug testing. There are also other exceptions to the law’s requirements, including for employees in safety sensitive positions.

Employers are required to provide notice of the employee’s rights under the law, including whether the position has been designated as safety sensitive and any drug testing protocols. The Office of Human Rights will be publishing a template notice.

Finally, employers are required to treat the use of medical marijuana in relation to a disability the same as it would any other controlled substance prescribed by or taken under the supervision ofa licensed health care professional.

Our Takeaway

Given how complicated marijuana is getting at the local and state level, employers are encouraged to consult with qualified legal counsel to determine what changes may be needed to their workplace and drug testing policies.