Creating Workplace Marijuana Policies
There are new waters to navigate in the state of Connecticut—legalized recreational use of marijuana and the workplace.
While the employment-related provisions of the state’s newly adopted marijuana legalization law do not take effect until July 1, 2022, employers should understand the impact on their workplaces.
Employer protection language in the law, commonly known as RERACA (Responsible and Equitable Regulation of Adult-Use Cannabis Act), comes from other state’s experiences, specifically neighboring Massachusetts and New York.
“They are some of the strictest laws in the country,” CBIA associate counsel John Blair told about two hundred employer representatives during a Sept. 28 webinar.
“They pretty much allow us to do the same things that you were able to do previous to the passage of this law.”
As time evolves, it will become clearer how to handle this change.
“I expect there will be changes, as you all know, big changes to regulatory schemes of environments take years to get right. So I think we are dealing with a very preliminary sense of the law,” explained Blair.
Connecticut is the 19th state to legalize marijuana, permitting the use and possession of marijuana in certain amounts for those aged 21 or older.
So what should employers do to prepare?
For starters, it is important to know whether an employer is exempt from the law’s employment provisions.
The following industries are exempt under the North American Industries Classification System, including:
- Transportation or delivery
- Healthcare or social services
- Educational Services
- Justice, public order, and safety
- National security and international affairs
“Even if you are not exempted, the law also states that some positions that you may have, some job positions in your workplace may be exempt from some of the provisions under the law,” explained Carmody Torrance Sandak & Hennessey partner Nick Zaino.
This includes a position that requires a CDL license, an OSHA construction safety and health certificate, is funded in part by a federal grant, or requires the supervision of children, medical patients, or vulnerable persons.
Federal contractors are not exempt from the Connecticut law by virtue of being a federal contractor.
While employers will need to follow the Federal Drug Free Workplace Act, Zaino said the law does not say an employer must fire someone if they test positive for any drug.
For employers who are not exempt, the employer has a fair amount of discretion in creating marijuana policies, according to Zaino and CBIA HR Counsel Diane Mokriski.
“The fact that it is legal in Connecticut to use marijuana does not mean that employers have to now allow it at work somehow, or be more lenient with their employees,” Mokriski said.
“You can still draft a policy that essentially preserves the current protections you have as an employer, you just have to draft a policy,” added Zaino.
Under that policy, an employer may:
- Continue to treat marijuana the same as alcohol in most scenarios, by not allowing it on the job, but leaving employees free to use it as they wish on their own time
- Prohibit employees from using or possessing marijuana outside of work, so long as it is written in company policy
- Conduct urine analysis drug testing before hiring a person, as well as drug test an employee if they have reasonable suspicion they are using marijuana and take action against that employee
“I think as the use of marijuana and cannabis products in all forms becomes more prevalent, more and more employers may decide not to actually drug test pre-employment for marijuana,” said Zaino.
“That is a decision that each employer needs to make for themselves.”
Each employer should put together something in writing for job applicants and current employees about company policy pertaining to marijuana.
“If you are subject to this law, all you need to do is make sure your policy outlines what you want it to be and then follow it,” said Zaino.
“Distribute that policy, put it in writing and then essentially you are, like an exempt employer.”
If an employer allows recreational use of marijuana outside the workplace, but not at work, attorneys suggest clearly writing out disciplinary action for using marijuana at work.
“If you have reasonable suspicion that someone is using drugs at work, you don’t have to do a drug test in order to discipline the employee,” said Mokriski.
“You can discipline the employee just based on their performance, their attitude, their behaviors, just generally as you would any other employee who is exhibiting unusual behaviors.”
Zaino suggested adopting the current law’s wording in your policy.
The current law states that “it does not limit an employer’s right to take adverse action when there is a good faith determination by the employer that the employee manifests specific articulable symptoms of drug impairment at work.”
An employer may want to write into a policy what constitutes a suspicion in determining impairment.
Mokriski said an employer may include wording such as out of the ordinary behaviors, smell of marijuana, physical dexterities, agility, demeanor, and negligence or carelessness attitudes.
“Some employers do provide training for some of their managers and supervisors on how to observe signs of potential drug impairment at work,” said Zaino.
An employer can adopt similar language if they prohibit the use or marijuana completely for employees.
The difference here is the employer will be able to test to determine marijuana use.
Medical Marijuana Exemptions
Under Connecticut’s Palliative Use of Marijuana Act, or PUMA, there are protections for an employee who is a qualifying medical marijuana patient.
The law is very specific in that the person must have received a license from the Department of Consumer Protection to use marijuana for medicinal purposes.
Under that, there are a number of conditions that must be met.
Zaino said this will be an area, however, that should be monitored as the law evolves.
“I do think there is an evolving area of law involving employees who request accommodations at work, who may not be considered qualifying patients, but do use medical marijuana under a doctor’s orders and may be looking for an accommodation under Connecticut’s Fair Employment Practices Law,” he said.
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