Marijuana Legalization Presents New Challenges and Opportunities for Employers

Letizia, Ambrose & Falls, P.C provided the following insight. It is posted here with permission. 

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Now that people aged 21 or older can legally possess and use marijuana, are employees allowed to use marijuana in the workplace? 

The answer to this question is no, but the Connecticut law legalizing marijuana use, which is known as Responsible and Equitable Regulation of Adult-Use Cannabis, contains specific limitations on what some employers can and cannot do when an employee uses or possesses marijuana outside of work and before being actually employed. 

Since most of the recreational marijuana rules that apply to employers become effective on July 1, 2022, it is critically important for employers to understand the scope of RERACA and their rights and obligations to their employees. 

RERACA also underscores the importance for an employer to have broad and updated drug-free workplace policies, including policies governing pre-employment drug testing, reasonable suspicion testing, and accommodation for those employees with medical marijuana cards. 

Employers should review and put in place these policies to better address their obligations that go into place on July 1.  

Employers should also know and understand what reasonable suspicion urine testing means, as that employer right continues under the new law. 

Who Is Subject to RERACA?

Employers in several industries, including construction and manufacturing, are exempt from the requirements of the RERACA. 

Even if an employer is not exempt from the RERACA, certain employee positions are exempt.

This includes positions funded by a federal grant, drivers for whom drug screening is required by state and federal law, positions requiring OSHA certification in construction safety, and positions with the potential to adversely impact the health and safety of employees and the public, as determined by the employer. 

This seemingly provides an employer with some flexibility to identify exempt positions. 

Exempt employers are not required to abide by the requirements of the RERACA, and even if employers are not exempt, they are not required to follow those requirements with respect to exempt employees in exempt positions, as listed above.  

However, employers are required to adhere to the law’s restrictions on employer conduct (which are described below) with respect to employees that are not exempt. 

Notably, the definition of “employee” under the RERACA includes independent contractors, which is highly unusual.

What Are the Restrictions?

RERACA prohibits covered employers from taking adverse action against an employee based on the employee’s use of marijuana outside of work, unless the employer has a written policy providing for that discipline. 

This provides another important reason to review and revise relevant policies before July 1.  

Moreover, an employer cannot take action against an employee based on 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. 

The law also limits an employer’s ability to penalize an employee or applicant based solely on a positive drug test.

The law also limits an employer’s ability to penalize an employee or applicant based solely on a positive drug test.

The law creates a private right of action for employees and applicants harmed by employer violations of the act’s proscriptions and enables employees to seek reinstatement, back wages, and attorneys’ fees through a civil action filed in Connecticut Superior Court within 90 days of the employer’s alleged violation of the law.  

This is fortunate as most violations of Connecticut employment laws allow the employee to file a complaint with the Connecticut Department of Labor or the Connecticut Commission on Human Rights and Opportunities, which is significantly easier than an employee retaining an attorney to file a lawsuit or try to bring one on their own.  

There are several circumstances identified in the law that cannot form the basis for a claim against the employer, including if the employer’s actions are based on the good faith belief that the employee used or possessed cannabis (except for medical marijuana) in the employer’s workplace in violation of the employer’s policies.  

What Rights Do Employers Have?

Strong workplace policies are key here.

Despite the employer restrictions imposed by RERACA, employers retain the fundamental right to require a drug-free workplace and regulate employee conduct in this context. 

For example, employers may still:

• Prohibit employees from working under the influence of marijuana or using or consuming marijuana while working on employer premises (except for medical marijuana, which law remains in effect). 

The bill defines “workplace” broadly and includes any area used by an employee while performing job duties and employer vehicles. 

• Discipline an employee if the employer has reasonable suspicion the employee used marijuana at work or the employee showed specific, articulable symptoms of drug impairment while at work
• Discipline an employee if the employer determines that the employee has specific symptoms of drug impairment at work
• Require pre-employment drug testing and take adverse action against employees who fail a drug test, if the employer follows a specific, written policy
• Implement a written policy prohibiting cannabis possession, use or consumption by an employee (except for medical marijuana) outside of work as long as the policy is made available to each employee or prospective employee when making an offer or conditional offer of employment

Further, nothing changes the rights and obligations of an employer and employee under Connecticut’s medical marijuana law. 

What Is Reasonable Suspicion Testing?

The bill still allows an employer to take disciplinary action against an employee based on reasonable suspicion or the presence of specific articulable symptoms of drug use. 

However, under Connecticut law, an employer generally cannot require an employee to submit to a urine test unless the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol, which adversely affects or could affect the employee’s job performance. 

An employer generally cannot require an employee to submit to a urine test unless they have reasonable suspicion the employee is under the influence.

The employer’s belief that the employee is under the influence of drugs or alcohol must be contemporaneous with the request that the employee submit to testing, which means there must be a specific, articulable basis to send the employee for testing at the time. 

While there is no bright line rule regarding what conduct will give rise to an employer’s right to require reasonable suspicion urine testing (i.e., odor on clothes in combination with other symptoms), it is clear that employee conduct that occurred even the day before will not support reasonable suspicion for urine testing. 

Why Are Workplace Policies Important?

Whether or not an employer is exempt from RERACA or has exempt employees, it is important to review and strengthen your existing drug-free workplace policy or create one before RERACA employer obligations go into effect on July 1, 2022.  

Employers should also create written guidelines governing reasonable suspicion testing and a consent form that clearly articulates the consequences to the employee of a positive test to avoid any legal pitfalls that may arise from testing that is not based on reasonable suspicion. 

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About the authors: Phyllis Pari and John Letizia are attorneys with Letizia, Ambrose & Falls, P.C, which represents employers across a number of subject areas.