Testimony of Nancy N. Delogu, Esq.

On .Behalf of the Associated Builders and Contractors of Metro Washington

on
821-0025, The Prohibition of Pre-Employment Marijuana Testing Act of
2015
February 9, 2015
John A. Wilson Building, Room 500
1350 Pennsylvania Avenue, N.W.
Washington, DC 20004

Good morning, members of the District of Columbia Council, their staff and
District of Columbia workers, and everyone gathered here today to discuss the
legislation being considered as part of today's Joint Public Hearing. I am here to
address the Prohibition of Pre-Employment Marijuana Testing Act of 2015 on
behalf of the Associated Builders and Contractors of Metro Washington and to
urge the Council to reject this unnecessary and potentially dangerous bill.
I'd like to address some of the legal issues that the enactment of this bill
would create and correct misimpressions that the Council may have regarding
how this legislation fits into the larger picture with respect to workplace drug
testing nationwide.
The Prohibition of Pre-Employment Marijuana Testing Act is short and to
the point. Its main purpose is to prevent an employer from asking a job applicant
or other candidate for hire to submit to, and presumably pass, a marijuana test as
a condition of hire. The only exception to the prohibition on testing would be for
marijuana testing required by law. The bill does not contain a statement of
intent. but some of that intent is probably expressed in Resolution 20-712, the
" Pro hi bit ion on Pre-Employment Marijuana Testing Emergency Declaration
Resolution of 2014" adopted by this Council on December 2, 2014.
That Resolution references the pending efforts to legalize and regulate
marijuana in the District of Columbia, and states that "it is imperative that people
who choose to use marijuana are not stigmatized when looking for employment."
The Resolution also references testimony fror'l Ms. Shawn Stokes, Director of the
Department of Human Resources that the majority of states have regulated or
restricted an employer's ability to require drug testing as a prerequisite for
employment.
That information is incorrect. If the District of Columbia passes legislation
prohibiting pre-employment marijuana testing, it will be the only jurisdiction in
the nation to do so, or indeed, to adopt legislation prohibiting pre-employment
tests for drugs of any sort. It is true that many jurisdictions, like Maryland, have
adopted regulations dictating that drug tests meet certain standards designed to
1
ensure accuracy and reliability.
But no city or state has prohibited preemployment drug testing.
1

(See, e.g., Maryland Health-Gen. 17-214 et seq.)

2

This is true even in Washington and Colorado, where marijuana has been
available for recreational use for some time. Individuals in those states who use
marijuana may nevertheless be required to comply with employer drug-free
workplace policies which include drug testing as a condition of hire or continued
employment.
There are good reasons for these decisions, including the
maintenance of safety and concerns about liability of employers who may employ
individuals who come to work with drugs in their system.
Prohibiting employers from declining to hire individuals who have
marijuana in their systems ignores the very real issues of impairment in the
workplace, and of potential liability employers may face if they hire or retain
individuals who engage in conduct that may no longer be criminal in the District
of Columbia but is illegal for all that under federal law. Under the legal doctrine
of respondeat superior, an employer is legally responsible for the actions of its
employees arising out of, and in the course of, their employment. Employers also
have obligations under various state and federal laws to provide a safe working
environment. The legislation, as drafted, contains no exception for employers
concerned about hiring an individual into any position in which impairment could
pose a risk to the applicant or others.
The December resolution also suggests that testing procedures for
marijuana should mirror the testing procedures for alcohol. The District of
Columbia does not regulate employer alcohol testing at this time. To the point,
however: no District law prohibits .an employer from declining to employ an
individual who comes to a job interview with cflcohol in his or her system, and that
is consistent with the employment law nationwide. If the District really wants to
treat marijuana use like alcohol use, then employers should have the right to
decline to hire individuals who come to the job interview with marijuana in their
t
systems.
You are I am sure aware of the inherent conflict between federal law, which
classifies marijuana as a controlled substance with a significant potential for
abuse, and the laws of a few jurisdictions that have decided to decriminalize
certain types of marijuana use and possession. That conflict has on occasion
piaced employers between the proverbial rock and the hard place as to how to
implement their drug-free workplace policies. In a some jurisdictions, job
applicants or employees have brought suit against employers alleging that the
3

employer may not discriminate against them based on their state-sanctioned

marijuana use. To date, the Supreme Courts of California, Montana, Oregon, and
Washington have ruled that because marijuana remains illegal as a matter of
federal law, an employer cannot be required to ignore, accommodate, or tolerate
that use. The U.S. Court of Appeals for the Sixth Circuit reached the same
decision with respect to the Michigan medical marijuana law.
The opinion of the Supreme Court of Oregon is instructive: after evaluating
the issue carefully, it concluded that the state's law authorizing the use of
marijuana was in direct conflict with federal law, with the result that federal law
preempted the state law - in other words, concluding that the state law was
2
without force and effect. The Supreme Court of California was equally blunt: it
held "No state law could completely legalize marijuana for medkal purposes
because the drug remains illegal under federal law even for medical users.
Instead of attempting the impossible ... California's voters merely exempted
medical users and their primary caregivers from criminal liability under two
3
specifically designated state statutes."
Today, the Colorado Supreme Court is considering whether an employer is
precluded from discriminating against an applicant who uses marijuana in
accordance with state law. The trial court and the Colorado Court of Appeals
concluded that the state could not so require. The State of Colorado filed a brief
4
in support of the employer's position. Despite its "legalization" of marijuana,
Colorado has decided that there are good reasons not to extend employment
protections to individuals whose use of marijuana violates employer policies. To
date, there is no court ruling of which I am a\tjare that has required any employer
in any United States jurisdiction to ignore an individual's use of marijuana where
that use conflicts with federal law and the employer's drug-free workplace policy.

See Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 348 Ore.
159 (Ore. 2010).
3
Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920, 926 (Cal. 2008)
(internal citations omitted).
4
See generally Coats v. Dish Network LLC, 303 P.3d 147 (Co. Ct. App. 2013).
2

The District of Columbia should not rush to do what no other jurisdiction

has done without carefully considering both the legal and practical implications of
adopting legislation prohibiting employers who for business reasons choose to
conduct pre-hire drug testing from testing applicants for the presence of
marijuana in their systems. Therefore, we urge you to reject the Prohibition of
Pre-Employment Marijuana Testing Act.

Nancy Delogu is an attorney with 20 years of experience in advising employers

on drug-free workplace issues, including federal, state, and drug testing laws. Ms.
Delogu is also a co-author and former editor of the Guide to State and Federal DrugTesting Laws. She is a frequent lecturer and author on substance-abuse issues, and
other employment law topics such as workplace privacy and disability discrimination,
and has testified before the U. S. Commission on Civil Rights on substance abuse and
disability issues. Prior to becoming an attorney, Ms. Delogu was the Associate Director
of the Institute for a Drug-Free Workplace, a non-profit advocacy organization dedicated
to advancing the interests of employers and employees in achieving a drug-free
workplace.

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