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D.C. Sued Over Medical Marijuana Policies For District Employees

Updated at 3:14 p.m.

Doretha Barber says that D.C.’s employment policies are forcing her to choose between the medicine that best treats her debilitating back pain and the Department of Public Works job she’s held for a decade. She just filed a lawsuit against the city, with the help of the American Civil Liberties Union of D.C., to end what she characterizes as discrimination for her participation in the District’s medical marijuana program.

Last month, Mayor Muriel Bowser announced a new marijuana policy for city workers: many D.C. employees can now use either medicinal or recreational cannabis, but there are some exceptions.

Barber is one of the exceptions. She has what is deemed a “safety-sensitive” position at DPW, which is generally defined as a role with duties that, if done poorly, could lead to harmful or deadly consequences. Many of these jobs require carrying a gun or operating machinery — employees who drive street sweeper vehicles, for example.

But Barber is a sanitation worker for the city, and most of her job consists of using a rake to collect trash and leaves. Currently, all of DPW’s sanitation workers are considered safety-sensitive, regardless of whether they’re driving a vehicle or otherwise operating heavy machinery.

Born with scoliosis, Barber was diagnosed with degenerative disc disease in 2014 which results in painful spasms that sometimes make it difficult to walk, stand or lift things, as well as migraines. This condition has often resulted in Barber having to miss work because she was in too much agony to perform her job.

She says that she believes the manual labor she performs “contributed to worsening my condition … Along with my spasms, I would get migraines that were so debilitating I would cry. Sometimes it was difficult to see. I couldn’t stand up. I couldn’t put my head up.”

Doctors prescribed Barber a muscle relaxant and ibuprofen, but the treatment caused some issues, too, she says. The muscle relaxant, Flexeril, made her drowsy, which also caused her to miss work, and the prescription-strength ibuprofen wasn’t effective at the dosage her doctor felt comfortable prescribing, given her body weight.

That’s when her doctor suggested she join D.C.’s medical marijuana program, which she did in the fall of 2018. She would use medical marijuana after work, she says, maintaining that she never used the medication while she was on the clock. (Currently, there are no tests available akin to a breathalyzer for marijuana.)

“Medical marijuana has been life-changing for me,” says Barber. “My migraines weren’t as intense. I still had spasms, but they weren’t as frequent. It helped me tremendously. I was able to go to work more.”

However, her employer, DPW, was among the D.C. agencies where workers have been confused and concerned about whether they can use medical marijuana.

Many front-line employees were told in summer 2018 that their roles had been reclassified as safety-sensitive, meaning they would now be subject to urinalysis drug testing (this kind of testing determines whether a person has used marijuana over the course of days or weeks, but not whether they are currently impaired). In May 2019, some employees received a memo telling them to find an alternative to medical marijuana to treat their ailments. The agency began implementing its drug-testing system in June.

In June, Barber went to DPW’s human resources to say that she was a part of the medical marijuana program, and was told that she needed to find a different medicine for her back condition, per the lawsuit. A letter she received from DPW in July said she couldn’t return to work until she passed a drug test, and that she had to attend substance abuse counseling.

She would have to take paid leave during the counseling, as she still wouldn’t be permitted to work. If she didn’t have paid leave yet, she would have to take unpaid leave, the letter said.

“I had already used my leave,” says Barber, who hasn’t received a full paycheck from DPW since July. “It stressed me out. I’m afraid about my living situation, about my car being repossessed. I was in the process of trying to fix my credit, and that’s not a possibility anymore.”

To comply with the DPW policy in an attempt to keep her job, Barber no longer uses medical marijuana regularly. “By stopping, my back spasms have intensified,” she says. “I recently had one where I literally felt like I was dying and I had to go to urgent care.”

Barber has asked for accommodations from DPW, like opportunities for clerical work or other desk jobs that would allow her to keep being paid. The agency has not done so, she says.

Her lawyer at the ACLU of D.C., Michael Perloff, contends that DPW’s refusal to grant Barber a reasonable accommodation by transferring her to a clerical role constitutes a violation of the District’s anti-discrimination law, the D.C. Human Rights Act.

Representatives for the city have previously said they are trying to allow as many workers as possible to use cannabis while ensuring that D.C. maintains a safe work environment and limits the potential for legal liability. They say they bar safety-sensitive workers from using marijuana because there’s no reliable drug test for it.

“Until science catches up with a social policy, we’re going to have to have a bifurcated system,” Jay Melder, the assistant city administrator, told DCist in September. “It’s our responsibility to make sure we have the safest environment possible.”

Perloff says he understands that the city is trying to ensure that its employees are not impaired on the clock, but believes that D.C. is going about it the wrong way. “The current approach [of drug testing] doesn’t answer the question the department wants to answer, but it does impinge on workers’ civil rights,” he says.

The mayor’s office has not responded to a request for comment about the lawsuit and typically does not comment on ongoing litigation.

The D.C. Council has considered some measures to ensure that prospective and current city employees are not discriminated against for using medical marijuana, but emergency legislation that passed over the summer stopped short of protecting safety-sensitive workers.

At-large Councilmember David Grosso introduced permanent legislation at the D.C. Council in May that would bar D.C. agencies from such employment discrimination, and there was a hearing for the bill in late September with dozens of scheduled speakers.

“We’ve been trying for quite some time now to get ahead of this type of [legal] action. It’s frustrating that it’s taken so much time and I’ve had a hard time even moving my own colleagues along,” Grosso, himself a medical marijuana patient, tells DCist. “I don’t understand why we think it’s okay to do harm to people who lose their jobs just because they have a medical marijuana recommendation by a doctor. We need to stop doing harm here and let these people work.”

He, like Perloff, contends that impairment is the question, and doesn’t agree with the emphasis on marijuana usage, rather than performance.

“The people that we’ve heard from that have been impacted are doing mostly jobs that are the frontline jobs of manual labor,” says Grosso. “It’s interesting to me that they’ve put the effort into classifying positions and enforcing that mostly affect blue-collar and African American workers in D.C.”

The city says that the reclassification of employees is a D.C. Human Resources initiative that began in 2015.

Barber’s lawsuit asks that the court order the city to accommodate her disability and allow her to return to work as a sanitation worker or find another job for her and pay her back pay and other compensatory damages.

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