Marijuana and Safety Sensitive Employees

I-2020-18


Effective Date: Expiration Date: Chapters:
Aug. 31, 2020 When Superseded 4   16  

Overview

In the District of Columbia, eligible individuals may use marijuana for medicinal and recreational purposes. However, marijuana can create risks when performing safety sensitive duties and responsibilities. This issuance implements and expands upon Mayor's Order 2019-81, Cannabis Policy, Guidance and Procedures. It explains the District's marijuana policy for employees in safety sensitive positions.


Use of Marijuana Products by Safety Sensitive Employees

To protect the safety of District residents and visitors, District government employees must uphold a high level of accountability. To meet this standard, the District government prohibits safety sensitive employees from using marijuana products. Safety sensitive employees will face disciplinary consequences if they test positive for marijuana, which is any substance that contains more than 0.03% of the psychoactive chemical delta-9-tetrahydrocannabinol (THC).

What does it mean to be a safety sensitive employee?

Employees who are designated as safety sensitive serve in positions with duties or responsibilities that if performed while under the influence of drugs or alcohol could lead to a lapse of attention that could cause actual, immediate, and permanent physical injury or loss of life to the employee or others. For example, employees who are required to carry a firearm are designated as safety sensitive.  

How do I know if I’m a safety sensitive employee?

Job applicants and employees receive information about requirements for safety sensitive positions throughout the hiring process. First, all job announcements indicate whether a position is safety sensitive. The following language will be included in the vacancy announcement for all safety sensitive jobs:

Position Designation: This position is designated as a Safety Sensitive position and is subject to mandatory pre-employment and periodic Criminal Background Checks and Traffic Records Checks (as applicable). This position is also subject to mandatory pre-employment and random Drug and Alcohol Testing. In this position, you may be disqualified from employment based on the presence of marijuana in test results, even if you possess a medical card authorizing the use of medical marijuana.

Second, upon hire for a safety sensitive job, employees must sign the Individual Notice of Requirements for Drug and Alcohol Testing: Safety Sensitive (Attachment 1) to acknowledge that they are subject to enhanced suitability screening, including random drug and alcohol testing. Safety sensitive employees will also receive an annual notification of their safety sensitive designation. Employees who are safety sensitive will see a tile in PeopleSoft called “Drug Policy” and will be prompted to acknowledge the District’s drug policy annually.

The D.C. Department of Human Resources, which is also known as DCHR, regularly publishes a list of all safety sensitive positions across the District government. If you have questions about your safety sensitive designation, please contact your agency’s Human Resources department.


Drug Testing for Safety Sensitive Employees

To protect District employees, residents, and visitors, safety sensitive employees are subject to drug testing for the length of their employment in the covered position. Under the District’s personnel regulations, safety sensitive employees undergo drug and alcohol testing:  

  1. Prior to starting their safety sensitive job;
  2. On a randomly selected basis;
  3. Following on-the-job accidents or incidents;
  4. When there is reasonable suspicion that the employee is impaired by drugs or alcohol;
  5. Following any absence from work to undergo drug or alcohol treatment; and,
  6. Following any progressive discipline for testing positive for marijuana.

Pre-Employment Drug Testing: Before You Start Your Job with the District Government

Applicants for safety sensitive positions who have received conditional offers of employment are referred to as “appointees.” Appointees for safety sensitive positions are subject to pre-employment drug testing after receiving a conditional offer of employment. This drug test includes testing for marijuana. Generally, positive test results for marijuana, alcohol, or other controlled substances may result in the appointee’s disqualification from employment.

Unless otherwise authorized by DCHR to address immediate recruitment needs, if an appointee tests positive for only marijuana and was not in possession of or impaired by marijuana at the time of testing, the agency must give the appointee a second opportunity to drug test at least two weeks later. Failing a second drug test will result in disqualification from employment in a District safety sensitive position for one year. Positive results on the first test for any other controlled substances will result in disqualification.

NOTE: Agencies may not disqualify appointees to safety sensitive positions simply because they are enrolled in a medical marijuana program. However, even if an appointee or employee is enrolled in such a program, they may not test positive for marijuana on any drug test.

Random Drug Testing 

Safety sensitive employees are subject to drug testing on a random basis. For agencies that participate in DCHR's Drug and Alcohol Testing Program, DCHR places all active safety sensitive employees into a random pool. DCHR, through its vendor(s), randomly selects employees from this pool to undergo testing for drugs and alcohol every month.

If a safety sensitive employee tests positive for marijuana on a random drug test, the employee will be subject to discipline even if they showed no signs of impairment at the time of testing. The below actions will generally be applied when a safety sensitive employee tests positive for marijuana. However, balancing the totality of the relevant factors established in § 1606.2 of the District’s personnel regulations may justify an action that deviates from the penalties outlined below.

First Offense

On the first instance of a positive result for marijuana on a random test with no other evidence of possession or impairment, the agency, through DCHR, will generally summarily suspend a safety sensitive employee for five workdays without pay. The employee must re-acknowledge the applicable drug and alcohol policy that was violated. The employee must also undergo a follow-up drug test upon returning from the suspension. However, the employee may elect to take up to 40 hours of their accrued annual or compensatory leave or leave without pay prior to returning to duty, if needed.

Second Offense

If a second offense occurs within a three-year period of the first offense, DCHR will generally deem the employee unsuitable for continued employment in a safety sensitive position for one year. The agency, through DCHR, will typically summarily separated the employee from employment. However, the agency or DCHR may demote, reassign, or transfer the employee to a non-safety sensitive position, in lieu of separation, based on operational needs.

Positive results on random tests for all other substances tested typically result in removal.

Post-Accident and Post-Incident Drug Testing

Safety sensitive employees, as well as all District employees, are subject to drug and alcohol testing if they are involved in an accident or incident that:

  1. Results in any bodily injury or loss of human life;
  2. Involves one or more disabled vehicles (either owned by the District or privately owned) that must be towed;
  3. Involves a bodily injury that requires immediate medical attention away from the scene;
  4. Results in the issuance of a traffic citation to the employee for one or more moving traffic violations arising from the incident;
  5. Indicates reasonable grounds to suspect that the employee was under the influence of an intoxicating substance at the time of the accident or incident;
  6. Indicates that the actions of the employee cannot reasonably be discounted as a contributing factor, using the best information available at the time of the decision; or
  7. Results in serious damage to machinery, equipment or other property.

Safety sensitive employees who test positive post-accident or incident for marijuana will be presumed to have been impaired at the time of the incident. Testing should be accompanied by a reasonable suspicion observation executed by a trained supervisor. The employee may be subject to discipline or removal as appropriate in accordance with Chapters 4 and 16 of the D.C. personnel regulations.

Reasonable Suspicion Drug Testing

Safety sensitive employees, as well as all District employees, are subject to reasonable suspicion drug and alcohol testing. If an agency believes that an employee is impaired at work due to the use of drugs or alcohol, the agency may require that the employee take a drug and alcohol test.

Some signs of impairment may include:

  1. Bloodshot eyes, pupils larger or smaller than usual;
  2. Unusually disheveled physical appearance;
  3. Falling asleep or fainting;
  4. Tremors, slurred speech, or impaired coordination; and
  5. Unusual smells on breath, body, or clothing.

An agency may not establish reasonable suspicion solely on the basis that an employee possesses a medical marijuana card or is enrolled in a recognized medical marijuana program. An agency furthermore cannot use the employee’s possession of a medical marijuana card, or enrollment in a recognized program, as a supporting factor for reasonable suspicion.

Safety sensitive employees who test positive for drugs or alcohol following a reasonable suspicion drug test may be subject to removal from their safety sensitive position. For more information on reasonable suspicion testing, please see the e-DPM Issuance, Reasonable Suspicion Drug and Alcohol Testing.

Return-to-Duty Drug and Alcohol Testing

There are two instances when a safety sensitive employee may be subject to return-to-duty drug and alcohol testing. First, they will be tested upon return to work following a positive marijuana test result that did not result in a removal, as described above.

Second, whenever an employee occupies a position that becomes designated as safety sensitive, they may self-report any existing drug or alcohol use within thirty days of the change in designation. The employee will be permitted to engage in any needed counseling or rehabilitation programs without being subject to adverse or other administrative actions. The employee may also be detailed to a position that is not safety or protection sensitive while undergoing treatment. Upon successful completion of treatment, the employee will undergo a drug and alcohol test before returning to their safety sensitive position.

How does the District test for marijuana products?

The District government uses a urinalysis test that detects THC. THC, or tetrahydrocannabinol, is the main psychoactive ingredient found in marijuana. For more information on the testing protocol, please consult the federal guidelines, including those outlined at Title 49 of the Code of Federal Regulations, Part 40.


Challenging Proposed Corrective and Adverse Actions

Safety sensitive employees who test positive for marijuana may challenge any resulting proposed corrective or adverse action in accordance with Chapter 16, as applicable. Following the issuance of the proposed action, an employee may present clear and convincing evidence that they were not impaired at the time of the test to the deciding official for a corrective or adverse non-removal actions, or to the hearing officer for a removal action, consistent with § 1621. Deciding officials and hearing officers may consider this evidence as a mitigating factor.

DCHR will make the final determination based on all the evidence available. 


References


Applicability

This issuance applies to all District government employees who are designated as safety sensitive employees and work in agencies that are under the Mayor’s authority.


Collective Bargaining Agreements

To the extent a provision of this issuance is incompatible with a negotiated collective bargaining agreement (CBA), the CBA provision shall apply.


Additional Information

For additional information concerning this issuance, please contact the Department of Human Resources, Policy and Compliance Administration, by calling (202) 442-9700 or by sending an e-mail to dchr.policy@dc.gov.


Attachments

  1. Attachment 1 - Individual Notice of Requirements Drug and Alcohol Testing: Safety Sensitive
  2. Attachment 2 - Random Notification for Selection for Random Drug And/Or Alcohol Testing
  3. Attachment 3 - Shy Bladder Fact Sheet
  4. Attachment 4 - Reasonable Suspicion Quick Reference Guide
  5. Attachment 5 - Reasonable Suspicion Form

Issued by Ventris C. Gibson, Director D.C. Department of Human Resources on Aug. 31, 2020, 4:22 p.m.