Statement on behalf of the
American Civil Liberties Union of the District of Columbia
DC Council Committee on Labor and Workforce Development
Public Hearing on Bill 23-309, the “Medical Marijuana Program Patient Employment Protection Amendment Act of 2019”
Wednesday, September 25, 2019
Michael Perloff, Attorney
Good morning, Chairwoman Silverman and members of this committee. My name is Michael Perloff and I am an attorney with the American Civil Liberties Union of the District of Columbia (ACLU-DC) testifying in support of Bill 23-309, the Medical Marijuana Program Patient Employment Protection Amendment Act of 2019. I present the following testimony on behalf of our 14,000 members in the District.
Bill 23-309 prevents District government employees—including those in safety sensitive roles—from facing adverse employment actions simply because they use medical marijuana. Instead, it only permits an employee to be disciplined for using that medication if a federal law or contract requires it or if the employee comes to work impaired.
This legislation affirms the commonsense rule that employees should not be punished simply for using a medication; rather, workplace sanctions should be based on an employee’s performance on the job. Currently, seven states protect medical marijuana patients from workplace discrimination—and do so without any carve outs for safety sensitive employees. D.C. should adopt the same approach.
- Despite Recent Reforms, District Agencies Can Still Categorize a Vast Array of Jobs as Safety Sensitive. The District Has Taken the Position that It Can Prevent Employees in Those Roles from Using Medical Marijuana outside of Work.
This month, Mayor Bowser issued an order on medical marijuana use by D.C. government employees and signed temporary legislation on the same issue. The order and the legislation represent positive steps but both contain a glaring flaw in that they do not provide clear protections for employees in positions designated “safety sensitive.” Indeed, the temporary legislation expressly omits those jobs from its coverage.
Agencies decide whether a position is classified as safety sensitive. As a result, creating a carve out for safety sensitive roles means giving agencies discretion over whether workplace protections apply to their own employees. This approach invites abuse. Case in point, District agencies currently classify over 7,000 jobs as a safety sensitive—including “clerical assistants” working in the Department of Corrections and “landscape gardener equipment operator helpers” working in the Department of General Services. The Mayor’ Cannabis Order could make the problem of over-classification worse. While the order prohibits agencies from designating all their positions as safety sensitive, it contains a broader definition of that term, creating new opportunities for agencies to adopt extreme interpretations.
But even if the District narrowed its exemptions—and we believe that it should—the current approach would still leave room for agencies to punish safety sensitive employees for taking medicine while off-duty regardless of whether doing so affects them on the job. Urinalysis tests, like those used by the District, assess whether employees have marijuana metabolites in their urine, not whether the employee is currently impaired. According to the National Highway Transportation Safety Administration, “the acute psychoactive effects of marijuana ingestion last for mere hours” but the metabolites can remain in an employee’s system for weeks. Consequently, an employee who uses medical marijuana on Saturday can test positive on Monday, even though the medication no longer affects the employee in any way. As this example shows, by relying on past consumption as a proxy for current impairment, the District has barred safety sensitive workers from using medical marijuana altogether.
Employees should not face discipline for consuming medical marijuana unless doing so prevented them from performing their duties in a safe and satisfactory manner. Enacting Bill 23-309 is necessary to uphold this principle.
- By Subjecting Safety Sensitive Employees to Urinalysis Tests, Current D.C. Policies Undercut Workers’ Civil Liberties and Discriminate against Medical Marijuana Users.
A. Subjecting Medical Marijuana Users to Urinalysis Tests Invades Their Privacy and Forces Them To Make Impossible Choices.
The ACLU-DC opposes all random drug tests because they constitute unwarranted violations of workers’ privacy and liberty. These exams require employees to share sensitive details about their medical history with strangers. And, because they assess past use rather than impairment, random drug tests allow employers to control what employees do in their spare time even if those activities have no effect on work.
Imposing urinalysis tests on medical marijuana users—whether done randomly or based on suspicion—has the particularly coercive result of forcing employees to choose between their health and their jobs. In July, the Department of Public Works (DPW) imposed this choice on a woman who uses medical marijuana to treat back spasms that cause pain from her spine to her cranium and produce migraines so excruciating that they bring her to tears. The one medication that substantially ameliorates this condition is medical marijuana. But DPW told this employee that she could not remain a sanitation worker unless she gave it up.
DPW put her on unpaid leave and barred her from returning to work until she could pass a drug test. To achieve that goal, this ten-year District employee has ceased using medical marijuana. Without her medicine, her spasms have grown worse and more frequent.
Bill 23-309 is critical because DPW is not alone in forcing employees to decide between pain relief and income. We have no doubt that employees throughout the District government are following this hearing with careful attention. Some may be librarians working for the D.C. Department of Corrections; others may be teachers. Some may use medical marijuana to treat the aftereffects of chemotherapy, others to overcome PTSD. Whatever their position, and whatever their disability, D.C. employees who use medical marijuana at home should not fear reprisal at work. Currently, many public servants do not enjoy that guarantee.
- Using Urinalysis To Test for Marijuana Use Discriminates against Medical Marijuana Patients and Reinforces Baseless and Harmful Stereotypes about Them.
Intended or not, banning safety sensitive employees from using medical marijuana, entrenches an unfounded stereotype that medical marijuana users are irresponsible—so much so that they cannot be trusted to use their medication properly if they work in a safety sensitive role. That assumption reinforces negative stigmas about marijuana use and has no basis in fact.
District agencies do not make the same assumptions about other behaviors. Including marijuana, agencies only test for five categories of drugs. Medications outside these categories can cause drowsiness; however, the District has not prohibited safety sensitive employees from using them while off-duty. To take a more extreme example, District agencies do not ban employees from consuming alcohol outside of work based on the risk that they “might” show up too hungover or inebriated to do their jobs.
Workers who use medical marijuana should be afforded the same respect. Denying them that respect reinforces biases about medical marijuana patients at a time when D.C. seeks to brand itself as a leader in progressive marijuana policies.
Of course, D.C. supervisors who suspect that an employee is impaired can stop that employee from performing potentially dangerous responsibilities. But that’s exactly the point: outside of medical marijuana, supervisors generally assess employees’ fitness based on actions and performance. There’s no reason that people who use medical marijuana should be treated differently.
In fact, existing policies may make the District less safe. Forced to choose between their job and their medicine, employees may opt for the former. Attempting to fulfill their duties while enduring crippling pain, these employees may be less effective than they would be if permitted to use medical marijuana at home.
- The District Should Assess Impairment Based on Performance Rather Than Recent Use of Marijuana.
The District undoubtedly has an interest in preventing people who are impaired at work from engaging in potentially dangerous activities. But random urinalysis tests are not an effective way to pursue that goal, both because they are unreliable and because they are privacy intrusive. Instead, employers should assess an employee’s ability to fulfill his or her duties based on the employee’s performance and behavior.
Scientists and policymakers have developed tests to help agencies implement this approach. For example, the DRUID Smartphone/Tablet App uses computerized tests to assess an employee’s reaction time, decision-making, motor tracking, and balance. An article in a peer-reviewed scientific journal examined the device as a means of assessing alcohol impairment and deemed it “a compelling and useful . . . candidate as a rapid screening test for identifying cognitive and psychomotor impairment.” Similarly, the Maine Department of Labor has modified protocols used by law enforcement agencies to assess drugged driving to make them suitable for the workplace. Maine offers a training course on the subject that the District could use as a model. While more analysis is needed to determine if these assessments meet the needs of workers and managers, the tests use the proper approach, emphasizing performance rather than past use.
- Other States Prohibit Workplace Discrimination against Safety Sensitive Employees. D.C. Should too.
Connecticut, Delaware, Maine, Minnesota, New Jersey, New York, and Rhode Island have adopted statutes similar to Bill 23-309. In all of these states, the law provides that unless federal laws or contract obligations require a harsher approach, employers may not impose adverse employments consequences on an employee who uses medical marijuana off-duty and comes to work unimpaired. None of these states have exempted safety sensitive positions from their protections.
Employers have adjusted to this legislation by abandoning stereotypes about medical marijuana. The employment law firm Fox Rothschild advices that for employers “in states where medical marijuana is legal, it is good practice . . . to treat medical marijuana like . . . any other medicine.” Similarly, Maxine Neuhauser, an employer-side lawyer with Epstein Becker & Green tells her clients “not to get hung up on [the fact] that this is cannabis,” advising them instead to “[t]hink about it as you would . . .a prescription for Vicodin or Xanax or Ambien.”
Bill 23-309 would require employers to follow a similar approach. In doing so, the legislation would challenge harmful stereotypes and eliminate coercive choices without hampering public safety.
For these reasons, we urge its enactment.
 Mayor’s Order 2019, Cannabis Policy Guidance and Procedures (Sept. 2019) § IV.F.7 [hereinafter Mayor’s Cannabis Order]; Medical Marijuana Program Patient Employment Protection Temporary Amendment Act of 2019, 23-114 (Sept. 5, 2019), http://lims.dccouncil.us/Download/42814/B23-0336-SignedAct.pdf [hereinafter Act 23-114].
 Mayor’s Cannabis Order § IV.F.7; Act 23-114 § 2(d).
 Act 23-114 at § 2(d).
 See District Personnel Instruction No. 4-38, Positions Subject to Enhanced Suitability Screening – Revised (Oct. 21, 2017), https://dchr.dc.gov/sites/default/files/dc/sites/dchr/publication/attach... (search for positions labeled “safety sensitive” yields over 7,000 results).
 Id. at 58.
 Id. at 195.
 Compare 6-B DCMR § 409.2, with Mayor’s 2019 Order § IV.B.3 (listing definition established in § 409.2 as only one of six factors an agency can consider when determining whether to classify a position as safety sensitive).
 6-B DCMR § 427.2 (“In general, testing for drugs shall be conducted by urine sample from the individual being tested.”); see National Highway Traffic Safety Administration, Marijuana-Impaired Driving: A Report to Congress 10 (July 2017) https://www.nhtsa.gov/sites/nhtsa.dot.gov/files/documents/812440-marijua... (discussing how urine tests for marijuana operate) [hereinafter NHTSA Report].
 Id. at 4, 10.
 See 6-B DCMR § 425.1 (“[Drug testing] vendors shall follow all procedures stated in 49 CFR Part 40 and District Government Procedures. . . .); see also 49 CFR § 40.85 (prohibiting laboratories from testing for any drugs other than “(a) Marijuana metabolites[,] (b) Cocaine metabolites[,] (c) Amphetamines[,] (d) Opioids[,] [and] (e) Phencyclidine (PCP)”).
 Jack E. Richman and Stephen May, An Investigation of the DRUID Smartphone/Tablet App as a Rapid Screening Assessment for Cognitive and Psychomotor Impairment Associated with Alcohol Intoxication, 5 J. College of Optometrists 31, 35–36 (2019), http://pubs.covd.org/VDR/issue5-1/offline/download.pdf.
 Id. at 31.
 Maine Dep’t of Labor, Guide for Employers: Marijuana in the Workplace 2 (2019), https://www.maine.gov/labor/publications/2019/MDOLGuidetoMarijuanaintheW....
 Conn. Gen. Stat. Ann. § 21a-408p(b)(3).
 Del. Code tit. 16 § 4905A(a)(3).
 Me. Rev. Stat. tit. 22 § 2430-C(1) &(3).
 Minn. Stat. Ann. § 152.32 subd. 3(c) & (d).
 N.J. Stat. Ann. § 24:6I-6.1.
 N.Y. Pub. Health Law § 3369(2).
 RI St. § 21-28.6-4(e), as amended by 2019 Rhode Island Laws Ch. 19-88 (19-H 5151A); see also Callaghan v Darlington Fabrics Corp., No. PC-2014-5680, 2017 WL 2321181, at *9 (R.I.Super. May 23, 2017).
 New York City has adopted legislation that bans preemployment testing of medical and recreational marijuana; however, that law does exempt certain positions. See https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3860393&GUID=... (click Int. No. 1445-A (Final)).
 William Bogot et al., Employment Compliance in the Age of Legalize Marijuana, Fox Rothschild 8 (2018), https://www.foxrothschild.com/content/uploads/2018/11/EB_EmploymentCompl....
 Susan K. Livio, N.J. Medical Marijuana Patients Win Huge Protections from Being Fired for Flunking a Drug Test, N.J.com (Apr. 25, 2019), https://www.nj.com/marijuana/2019/04/nj-medical-marijuana-patients-win-h....