Legal Marijuana Poses New Challenges for Employers

The following article was first published June 17, 2021, on Shipman & Goodwin attorney Daniel Schwartz’ Connecticut Employment Law blog. It is reposted here with permission.

---

The General Assembly early today gave final approval to a bill that will legalize marijuana/cannabis use in Connecticut.

It is a massive shift and the bill legalizing it is massive too.  (Heck, the summary of the bill is 184 pages!)

The bill creates a whole new set of rules for employers—most of which will go into effect in one year (July 1, 2022)—so we’ll do a deeper dive into this in a future post.

For now, here’s a sneak peek at some of what employers will need to know from this bill, which is now expected to be signed by Gov. Ned Lamont as well:

• There will be, in effect, two sets of rules for employers: employers that are exempt (like manufacturers, schools, justice-related) and positions that are exempt (like positions that require driving and subject to federal drug testing laws) will have one set of rules, while remaining employers will be subject to the remainder of them.
  • Interestingly, the rules for “employees” will also cover independent contractors, as the definition of employee actually includes independent contractors! (Line 4341 if you want to read it for yourself.)
  • Generally, employers that are exempt or that have positions that are defined as “exempt” will have far more flexibility in making employment decisions.
• Employers will not be required to make accommodations for an employee to perform his or her job duties while under the influence of cannabis or allow employees to possess, use or consume cannabis while working or on the employer’s premises (except for possession of medical marijuana, which continues).
• Employers can implement a policy to this effect but if it has one, it needs to be in writing and made available to all employees and job applicants when making an offer.
  • Generally, having a policy will ultimately provide employers with more flexibility in making employment decisions related to employees and cannabis.
• Employers will still not be able discriminate against someone for their status as a qualifying patient using medical marijuana.
  • But the bill will also bar an employer from holding against an employee the use of cannabis products before employment unless it would put the employer in violation of a federal contract or cause it to lose federal funding.  There are some other exceptions too.
• Like alcohol use on the job, an employer can still take employment action against employees upon a “reasonable suspicion” of drug use on the job or if the employee manifests “specific, articulable symptoms of drug impairment”.
  • But these provisions don’t apply at all to the exempt employer or exempt positions.  Employers in those fields will have far more flexibility in taking action against employees.
  • And employers with a policy prohibiting drug use may have more flexibility as well.
• If an applicant or an employee (who is not otherwise exempt from the rules) tests positive for marijuana say before starting the job, it cannot be used as the basis to refuse to hire or to fire the employee unless certain conditions are established.
• Employees who are harmed by an employer will have the right to bring a private cause of action against the employer (again subject to various exclusions and exemptions).

Frankly, there’s far far more about this than could be neatly fit into a short blog post. Suffice to say that employers will have to train managers and human resources on how to handle this entirely new enforcement area.

We’re in a brave new world—legal cannabis is here to stay.

---

Daniel Schwartz is a partner with Shipman & Goodwin and represents employers in various employment law matters. He is also the author of the independent Connecticut Employment Law Blog. The blog discusses new and noteworthy events in labor and employment law on a daily basis.