Marijuana Legalization Has Major Implications for Workplaces

Lost in the current debate about legalizing recreational marijuana is the impact on Connecticut workplaces, particularly among the state’s thousands of defense manufacturers and federal contractors.
Chris DiPentima, president of Pegasus Manufacturing, a Middletown company that makes parts for federal defense contractors, calls the prospect of legalized marijuana “frightening.”
“I’m probably going to have to lay off one-third of my workforce,” DiPentima says.
“I have federal requirements to do drug testing.”
Legislation establishing the framework for legalization advanced out of a key committee this week, moving Connecticut one step closer to joining a number of other states, including neighboring Massachusetts.
While the push for legalizing marijuana has gained considerable momentum in Connecticut, with legalization a distinct possibility this year, the federal government still views the drug as a Schedule I narcotic.
That means from the federal government’s perspective, marijuana has no accepted medical use—despite 33 states allowing its use for medical purposes—and has great potential for abuse.

Defense Contractors Concerned

Many CBIA members, especially manufacturers, are concerned with marijuana legalization’s impact on their ability to meet workforce demands, already a considerable challenge.
Businesses are also worried about their exposure to civil liability if an employer has a good faith belief that an employee possesses or appears impaired by cannabis.
Representatives from three major defense contractors—General Dynamics Electric Boat, Lockheed Martin Sikorsky, and United Technologies Corporation—recently shared their concerns with state lawmakers.
The companies employ over 38,000 people in Connecticut and say legalizing marijuana without comprehensive employer protections jeopardizes their ability to provide safe workplaces.
“As federal government contractors, we are required to have a workplace that is free of controlled substances under the Drug Free Workplace Act of 1988,” Susan Adams of Electric Boat, Larry Duncan of Sikorsky, and Peter Holland of UTC said in a joint statement.
“Many of our employees are required to have security clearances to do their jobs, and as a result, cannot use or possess cannabis.”

Policy Enforcement

The three companies also expressed concerns that legalization will hamper efforts to meet workforce development needs.
They said legalization proposals “must include language to protect the rights of employers to enforce policies restricting the use of cannabis by employees in and outside of the workplace, as well as to base employment decisions on the pre-employment cannabis use of job candidates not covered by the Palliative Users of Marijuana Act.”
The three urged lawmakers to adopt policies similar to California, Oregon, and Vermont.
Those states have no employment protections for recreational marijuana users and acknowledge in their laws that employers—specifically federal contractors—can run their businesses as they see fit, and comply with federal laws and contracts.
“Protections such as these are necessary for us to do business in this state while still meeting our obligations,” the trio testified.

No Employee Accommodations Sought

The legislature’s Judiciary Committee is considering a bill—SB 1089—which ensures employers are not required to make accommodations or allow employees to work while high on marijuana, or possess or consume a cannabis substance at work.
CBIA’s Louise DiCocco told the committee that while employers appreciate the bill’s intent, more needs to be done.
DiCocco asked if employers will be allowed to conduct random drug tests on employees whose jobs require them to be drug free.
She also noted that state law prohibits an employee from working while impaired—but unlike alcohol, there is no reliable test for marijuana impairment.
“Should this bill move forward, will a threshold amount of the presence of marijuana be specified?” DiCocco asked.
CBIA HR counsel Mark Soycher agrees that marijuana legalization presents a myriad of concerns for employers.
Soycher said because an applicant tests positive for marijuana doesn’t necessarily mean the person is under the influence, just that they previously used the drug.
He noted that marijuana remains in the body for 30 days or longer even though its effects may only last a few hours.

Impaired Performance

Soycher said that under Connecticut law, to drug test an employee, the employer must have clear evidence of impaired performance.
But that alone is more than enough to support a decision to terminate without a drug test, he said.
Soycher said it’s ultimately up to employers to decide whether to hire an applicant who, despite admitting to using legal marijuana, has the requisite skills and is responsible.
He recalled speaking with a Connecticut employer that wanted to hire a Massachusetts resident but the man, who was subject to a pre-employment drug test, admitted to smoking pot a few weeks earlier.
“The employer told me he would like to hire him because he has good skills,” Soycher said.
“I said, ‘If you can get a level of confidence that he’s not a habitual user or abuser, go ahead and hire him.'”

For more information, contact CBIA’s Louise DiCocco (860.244.1169) | @LouiseDiCocco