B 23-0309 — Medical Marijuana Program Patient Employment Protection Amendment Act of 2019

ENGROSSEDENROLLED ORIGINAL AAN BILLACT 3_____________ 23-309 5 IN THE COUNCIL OF THE DISTRICT OF COLUMBIA 7 _____________________ 9 To amend the District of Columbia Government Comprehensive Merit Personnel Act of 1978 to clarify the Mayor’s rulemaking authority with respect to titles XX-B, XX-C, XX-D, and new title XX-E, to require District agencies to notify employees when their positions are designated as safety-sensitive, to permit a District employee to request a written explanation of the duties and conditions under which such duties are performed that make the position safety-sensitive, to permit employees to appeal the designation of the employee’s position as safety-sensitive to their personnel authority and then to the Office of Employee Appeals, to authorize the Office of Employee Appeals to issue a final decisions,decision, not subject to judicial review, as to whether an employee’s position is safety- sensitive, to prohibit the District government from taking an adverse employment action against an individual for participating in the District’s or another state’s medical marijuana program, to prohibit a District agency from using the results of an agency- administered drug test for marijuana components or metabolites as the basis for employment related decisions against a medical marijuana program participant unless reasonable suspicion exists that the medical marijuana program participant used or was impaired by marijuana at work or during work hours, except in limited circumstances, to permit a District employee who is a participant in a medical marijuana program to request and receive a reasonable accommodation for the employee’s use of medical marijuana, and to require that existing District employee drugdrug-testing testing programs comply with the new protections afforded to medical marijuana program participants;

and to makeamend conforming amendments to the Department of Corrections Employee Mandatory Drug and Alcohol Testing Act of 1996.1996 to make conforming amendments.

ENGROSSED ORIGINAL Sec.

ENROLLED ORIGINAL (a) The table of contents is amended as follows:

(1) BeforeA thenew phrasesection “Sec.designation is added to read as follows:

604.” add a new phrase to read as follows:

(2) BeforeA thenew phrasesection “Sec.designation is added to read as follows:

1504.” add a new phrase to read as follows:

RIGHT TO NOTICE AND APPEAL OF SAFETY-SAFETY-SENSITIVE SENSITIVE DESIGNATION”.

(3) Before the phrasetitle designation “XXI.

HEALTH BENEFITS”,BENEFITS” add a new phrasetitle designation and section designations are added to read as follows:

“(14B) The term “qualifying patient” means an individual who is actively registered in the District’s medical marijuana program established pursuant to section 6 of the Legalization of Marijuana for Medical Treatment Initiative of 1999, effective July 27, 2010 ENGROSSED ORIGINAL (D.C.

“(A) An employee hired into a position designated as safety-sensitive after the effective date of the Medical Marijuana Program Patient Employment Protection ENGROSSED ORIGINAL Amendment Act of 2020, aspassed approved by the Committee on Labor2nd andreading Workforce Development on OctoberDecember 27,1, 2020 (Committee(Enrolled Printversion of Bill 23-309), on or before the employee’s date of hire;

and ENROLLED ORIGINAL “(B) Each incumbent employee in a position designated as safety-sensitive as of the effective date of the Medical Marijuana Program Patient Employment Protection Amendment Act of 2020, approvedpassed by the Committee on Labor2nd andreading Workforce Development on OctoberDecember 27,1, 2020 (Committee(Enrolled Printversion of Bill 23-309), within 30 calendar days after the effective date of the Medical Marijuana Program Patient Employment Protection Amendment Act of 2020, aspassed approved by the Committee on Labor2nd andreading Workforce Development on OctoberDecember 27,1, 2020(Enrolled (Committeeversion Print of Bill 23-309);

and “(3) If an agency designates an employee’s position as safety-sensitive after the effective date of the Medical Marijuana Program Patient Employment Protection Amendment Act of 2020, aspassed approved by the Committee on Labor2nd andreading Workforce Development on OctoberDecember 27,1, 2020 (Committee(Enrolled Printversion of Bill 23-309), provide the employee written notice of the change in position designation, which shall include the notice described in paragraph (2) of this subsection, at least 30 calendar days before the change in designation takes effect.

ENGROSSED ORIGINAL “(2)(A) The agency shall provide the explanation to the employee within 10 business days after receiving a request pursuant to this subsection.

“(A) For employees employed by the District in positions designated as safety-sensitive as of the effective date of the Medical Marijuana Program Patient Employment ENGROSSED ORIGINAL Protection Amendment Act, aspassed approved by the Committee on Labor2nd andreading Workforce Development on OctoberDecember 27,1, 2020 (Committee(Enrolled Printversion of Bill 23-309), within 45 business days after the employee receives the notification of rights provided pursuant to subparagraph (a)(2)(B) of this section;

ENROLLED ORIGINAL “(B) Within 45 business days after an employee becomes a qualifying patient;

The petition shall state the reasons why the employee’s position does not meet the definition of thesafety termsensitive, “safety sensitive,” as defined in section 301(15B).

ENGROSSED ORIGINAL “(2)(A) The personnel authority shall review the employee’s petition, and any response from the agency, and issue a written determination granting or denying the employee’s petition,petition within 30 calendar days after receiving the petition.

ENGROSSED ORIGINAL “(g) The designation of an employee’s position as safety-sensitive shall not be suspended, tolled, or otherwise invalidated during the pendency of an appeal initiated pursuant to this section.

ENROLLED ORIGINAL “(i) For the purposes of this section, the term “agency” includes the Council.”.

42 U.S.C.

ENGROSSED ORIGINAL “(a)(1) Notwithstanding any other provision of law and except as provided in subsection (b) of this section, an agency may not refuse to hire, terminate from employment, penalize, fail to promote, or otherwise take adverse employment action against an individual based upon the individual’s status as a qualifying patient unless the individual used, possessed, or was impaired by marijuana at the individual’s place of employment or during the individual’s hours of employment.

“(2) A reasonable accommodation may include reassigning or transferring an employee to an open position for which the employee is otherwise qualified, or modifying or ENGROSSED ORIGINAL adjusting the employee’s job duties or working environment, or modifying or adjusting the agency’s operating procedures to enable the employee to successfully perform the essential functions of the job.

ENROLLED ORIGINAL “(B) Impose an undue hardship on the employing agency;

ENGROSSED ORIGINAL “(e) Notwithstanding section 404(a), the Council may issue rules to implement the provisions of this section.”.

Appeals of Safety-Sensitivesafety-sensitive Designations.designations.

“(a) An employee may appeal the determination of a personnel authority denying the employee’s petition appealing a safety-sensitive position designationdesignation, (pursuantpursuant to section 1503a)1503a, to the Office within 30 calendar days after the issuance of the personnel authority’s determination oror, if this section is not applicable when the personnel authority issues the determination, within 30 calendar days after the applicability date of this section.

“(c) All decisions of the Office on appeals of safety-sensitive designations (“designation decisions”) shall include findings of fact and a written decision, as well as the reasons or basis for the decisiondecision, upon all material issues of fact and law presented on record, and an order;

Final designation decisions shall be published in accordance with the rules and regulations of the Office,Office and shall be published on the Office’s website.

AnyA designation decision shall include a statement of any further process available to the parties including, as appropriate, a party’s right to file a petition ENGROSSED ORIGINAL for review or a petition for enforcement.

The Office shall transmit copies of anya designation decision to all parties to the appeal, including named parties and intervenors.

“(d)(1) In appeals brought pursuant to this section, a Hearing Examiner shall issue an initial designation decision within 60 business days after the appeal is filed with the Office, unless the Hearing Examiner determines that an evidentiary hearing is warranted, in which case the Hearing Examiner shall issue an initial designation decision within 90 business days after the ENROLLED ORIGINAL appeal is filed.

“(3) A Hearing Examiner may grant an extension of a deadline set forth in paragraph (1) or (2) of this subsection only where extraordinary circumstances prevent the meeting of the deadline and the need for the extension outweighs any prejudice to a party.

If a Hearing Examiner determines that the dilatory actions of a party contributed to the need for an extension, the Hearing Examiner may, in the Hearing Examiner’s discretion, draw inferences against the offending party.

ENGROSSED ORIGINAL “(4) A Hearing Examiner shall review the question of whether an employee’s position is safety-sensitive without deference to the agency’s designation or the personnel authority’s determination.

To prevail, the personnel authority must establish, by a preponderance of the evidence, that the employee’s position meets the definition of safety- sensitivesensitive, as defined in section 301(15B).

“(5)(A) The initial designation decision of a Hearing Examiner shall become final 15 business days after issuance,issuance unless a party files a petition for review of the initial designation decision with the Office within the 15 business-day period.

ENGROSSED ORIGINAL “(e) A final designation decision of the Office issued pursuant to this section is not subject to judicial review.