- Under legislation signed into law earlier this year, Connecticut residents can legally use and possess recreational marijuana
- Certain parts of the bill affect how employers can craft policies related to drug-free policies and employees’ use of marijuana
- Workplace policies will go into effect on July 1, 2022
Summary by Dirk Langeveld
A law signed earlier this year to legalize the use, possession, and sale of recreational marijuana in Connecticut raises several questions for the state’s employers. Can employees be allowed to use marijuana during breaks? Should a worker’s use of marijuana outside of work affect their employment? What action should an employer take if they believe an employer’s marijuana use is negatively affecting their job performance?
The law is crafted in a way that largely preserves an employer’s ability to set their own policies on drug use, and employers in several industries can claim an exemption from the law’s stipulations. The sections of the law affecting workplace policies do not go into effect until July 1, 2022, giving employers plenty of time to consider and update their company rules on recreational marijuana.
What the law allows
The legislation, signed into law by Governor Ned Lamont on June 22, has the immediate effect of legalizing the recreational use of marijuana. Connecticut adults ages 21 and older may possess up to 1.5 ounces of marijuana on their person and up to five ounces in a locked container.
The bill takes a wide range of other actions as well. These include starting the process to allow retail sales of marijuana in Connecticut by the end of 2022, allowing participants in the state’s medical marijuana program to begin cultivating their own marijuana plants, erasing certain convictions for marijuana-related crimes, and steps to prevent sales to underage residents, ensure safe driving, and otherwise encourage responsible use of the drug.
What employers cannot do
Under the law, employers are generally prohibited from taking adverse action against an employee who uses marijuana outside of work or tests positive for THC. However, an employer can still take this action if their workplace policies make it clear that an employee can be punished in either circumstance. If so, the employer policies must be in compliance with the state’s drug testing laws and make accommodations for employees who use medical marijuana.
Use of marijuana outside of work or a positive THC test also cannot serve as the sole reason an employer denies employment to a job applicant or terminates an existing employee. This action is allowed if the employer determines that the employee’s marijuana use will violate a federal contract or jeopardize federal funding, reasonably suspects that the employee’s use of marijuana is inhibiting their job performance, or if the employee shows “specific, articulable symptoms of drug impairment” while on the job.
What employers can do
Employers are still allowed to establish drug-free workplace rules prohibiting employees from possessing, using, or consuming marijuana at the workplace. However, an exemption must be made for employees protected under Connecticut’s medical marijuana law.
As mentioned above, employers can still develop workplace policies stipulating that use of marijuana outside of work or a positive THC test can be grounds for adverse action. Employers are also able to take action against an employee if a drug test shows that they are under the influence of marijuana at work, or if an employee’s behavior presents a “reasonable suspicion” that they are using marijuana at work or under the influence of the drug while on call.
The law outlines a broad range of behaviors that could demonstrate potential drug impairment, including symptoms such as their speech, coordination, and agility; negligence in operating equipment; disregard for safety or involvement in an accident causing serious damage; or carelessness resulting in an injury.
Several employers can claim exemption from the prohibitions in the law, and certain positions are exempted from the greater leniency allowed to workers in recreational marijuana use. These include positions requiring the operation of a motor vehicle, those requiring OSHA training in construction safety and health, and those caring for children, medical patients, or other vulnerable populations.
These exemptions apply to a broad range of businesses, including manufacturing, transportation and delivery, educational services, health care and social services, construction, and utilities. Employers can also claim an exemption if they determine that employee use of marijuana would potentially have an adverse affect on the health or safety of the company’s workers or members of the public. Since recreational marijuana use is still illegal at the federal level, the exemptions also apply to positions funded completely or in part by federal money.
Preparing for the change
The National Law Review recommends that Connecticut employers consider how the law will affect current company policies, including hiring practices, disciplinary actions, and drug testing procedures. It recommends that companies that conduct drug testing should revisit reasonable suspicion and manager trainings to ensure that they are compliant with the new requirements.
Consult with an attorney to see how the law will affect your business and what changes you might need to make to your policies. All updated policies should be in writing and made available to all employees.