Section 1-615.03a - Right to notice and appeal of safety-sensitive designation.(a) If a position is designated as safety-sensitive, the agency shall: (1) Include such designation in any position description for the position, including a job description utilized for hiring or recruitment;(2) Provide written notice of an employee's rights under this section, including the right to appeal the safety-sensitive designation, and of an employee's right to request a reasonable accommodation, consistent with the terms of section 2062, to:(A) An employee hired into a position designated as safety-sensitive after the effective date of the Medical Marijuana Program Patient Employment Protection Amendment Act of 2020, passed on 2nd reading on December 1, 2020 (Enrolled version of Bill 23-309), on or before the employee's date of hire; and(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, passed on 2nd reading on December 1, 2020 (Enrolled version of Bill 23-309), within 30 calendar days after the effective date of the Medical Marijuana Program Patient Employment Protection Amendment Act of 2020, passed on 2nd reading on December 1, 2020 (Enrolled version 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, passed on 2nd reading on December 1, 2020 (Enrolled version 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.(b)(1) An employee in a position designated as safety-sensitive has the right to request a written explanation of the reasons and factors justifying the designation from the employee's agency.(2)(A) The agency shall provide the explanation to the employee within 10 business days after receiving a request pursuant to this subsection.(B) The explanation shall include a description of the specific routine job duties and circumstances under which such duties are performed, for which it is reasonably foreseeable that, if the employee performs such duties while under the influence of drugs or alcohol, the employee could suffer a lapse of attention or other temporary deficit that would likely cause actual, immediate, and serious bodily injury or loss of life to self or others.(C) The written explanation may be satisfied by providing the requesting employee with a position description that contains the information required under subparagraph (B) of this paragraph.(c) Notwithstanding any other provision of law or collective bargaining agreement, an agency may update a position description to include the information required pursuant to subsection (b)(2)(B) of this section without bargaining over the language; provided, that any agreement with a labor representative, including a collective bargaining agreement, to bargain over the position designation itself shall still apply. (d)(1) Except as provided in paragraphs (2) and (3) of this subsection, an employee has the right to appeal the designation of the employee's position as safety-sensitive under the following circumstances: (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 Protection Amendment Act, passed on 2nd reading on December 1, 2020 (Enrolled version 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;(B) Within 45 business days after an employee becomes a qualifying patient; or(C) Within 45 business days after the employee receives notice, pursuant to subsection (a)(3) of this section, that the employee's position will be newly designated as safety-sensitive.(2) An employee may not appeal a safety-sensitive designation solely because: (A) The employee failed a job-related drug test; or(B) The employee is facing an adverse action related to the employee's failure to pass a job-related drug test.(3) An employee may not appeal a safety-sensitive designation when the position is subject to random drug testing under federal law or as a condition of federal funding.(e)(1) An employee may appeal the designation of the employee's position as safety-sensitive by filing a petition with the employee's personnel authority. The petition shall state the reasons why the employee's position does not meet the definition of safety sensitive, as defined in section 301(15B).(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 within 30 calendar days after receiving the petition.(B) The determination shall state the reasons for the grant or denial of the petition. If the personnel authority grants the petition, it shall redesignate the position in consultation with the employing agency. If the personnel authority denies the petition, the determination shall state the right of appeal, and, subject to the availability of funding, the employee may appeal the denial to the Office of Employee Appeals, pursuant to section 603 a: (i) Within 30 calendar days after the personnel authority issues the determination; or(ii) If section 603 a is not applicable when the personnel authority issues the determination, within 30 calendar days after the applicability date of section 603 a.(C) Upon receipt of an appeal of the personnel authority's determination, the Office of Employee Appeals shall finally determine, pursuant to section 603 a, whether an employee's position is safety-sensitive.(f) Notwithstanding any other provision of this section, a negotiated appeal procedure established within a collective bargaining agreement that permits an employee to challenge the designation of a position as safety-sensitive shall supersede and replace the appeal procedures established pursuant to this section and section 603 a. (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. (h) Notwithstanding section 404(a), the Council may issue rules pertaining to Council employees to implement the provisions of this section. (i) For the purposes of this section, the term "agency" includes the Council. Amended by D.C. Law 24-45,§ I-F-1052, 68 DCR 010163, eff. 11/13/2021.Added by D.C. Law 23-276,§ 2, 68 DCR 004794, eff. 4/27/2021.