Drug and Alcohol Testing: Employer Requirements
On July 1, 2022, the employer provisions of the Responsible and Equitable Regulation of Adult-Use Cannabis law, known as RERACA, will go into effect.
Employers should update their policies to comply with the new law, and pay particular attention to the restrictions on drug and alcohol testing.
Employers are now subject to multiple Connecticut statutes that restrict their ability to drug test their workers.
Employers must continue to comply with the “old” drug testing statutes, which govern the circumstances under which employers may conduct urinalysis testing.
Beginning July 1, they will also be subject to RERACA’s new requirements pertaining specifically to drug tests that produce positive results for THC, the active ingredient in cannabis.
General Methodology Requirements
If an employer uses a urinalysis drug test, it must comply with statutory procedures.
The test must utilize a reliable methodology, and a positive test must be confirmed with a second urinalysis test.
The second test must be independent and separate from the first.
The methodology must be approved by the Commissioner of Public Health, such as mass spectrometry or gas chromatography.
Furthermore, observation by an employer or representative is not permitted when an individual is producing a urine specimen.
Test results should be maintained with other employee medical records and are inadmissible in any criminal proceeding.
A prospective employee is any individual applying for employment.
However, employers should be mindful that an individual who terminated employment with the company within twelve months of their application is considered a current—not prospective—employee, and so may not be tested as part of their re-application.
Under Connecticut law, prospective employees may not be required to submit to a urinalysis drug test unless: (1) the applicant is informed in writing at the time of application of the employer’s intent to conduct a drug test, (2) the test is conducted following the methodology requirements, and (3) the prospective employee is sent a copy of a positive result.
Additionally, the test results are confidential and only disclosed to the employee and to whom it is necessary.
Starting July 1, 2022, a drug test that yields a positive result only for THC (as opposed to illegal drugs, for example) cannot be the sole reason for refusal to employ, unless either: (1) hiring the applicant would put the employer in violation of a federal contract or jeopardize federal funding, or (2) the employer made a conditional job offer and provided notice of the policy. Note that the addition of this new requirement means that employers must make a conditional offer of employment to an applicant before requiring the THC test.
Simply giving an applicant notice of the intent to test is no longer sufficient.
This provision does not apply to exempt employers or to applicants for exempt positions.
An employer cannot require an employee to submit to a urinalysis drug test unless (1) the employer has reasonable suspicion that the employee is impaired by drugs or alcohol, or (2) the employer is authorized to conduct random testing.
An employer may require an employee to submit to a urinalysis drug test only if the employer has reasonable suspicion that the employee is under the influence of drugs or alcohol that adversely affects or could adversely affect the employee’s job performance.
Reasonable suspicion means that the employee exhibits specific symptoms of drug or alcohol impairment while working.
Note that the “old” drug testing laws – which are still in effect – restrict an employer’s ability to conduct urinalysis testing.
The new statute restricts how an employer reacts to the testing results – at least when those results are positive for THC.
Beginning July 1, 2022, the law restricts an employer’s ability to penalize an employee based solely on a positive THC drug test result.
An employer may discipline an employee in only four circumstances: (1) where failure to terminate employment would put the employer in violation of a federal contract or risk federal funding; (2) where the employer reasonably suspects the employee used cannabis while engaging in work responsibilities; (3) where the employee showed specific symptoms of drug impairment while working that impaired his performance; or (4) where the drug test was given pursuant to a random testing policy that stipulated that a positive THC result would result in an adverse employment action.
This provision does not apply to current exempted employees.
Examples of specific symptoms of drug impairment include: an employee’s speech, physical dexterity, agility, coordination, demeanor, unusual behavior, negligence in operating machinery, disregard for the safety of self or others, involvement in an accident that results in serious damage, or carelessness that results in injury to self or others.
Random Drug Testing
Urinalysis drug tests can be required on a random basis where the test is authorized by federal law, where the occupation is designated as high risk or safety-sensitive, or where the test is part of a voluntary employee assistance program.
Safety-sensitive, or high-risk occupations, are designated by the Connecticut Department of Labor.
However, just because an occupation is listed does not mean that an employer may implement a random drug testing program.
The labor commissioner must approve an employer’s written request for random urinalysis drug testing before the employer may enforce such a policy.
Starting July 1, 2022, employer policies prohibiting cannabis use by employees, including policies that provide for random drug testing, must be in written or electronic format and be made available to each employee before the enactment of the policy.
Additionally, the policy must be conveyed to prospective employees during the offer of employment.
Medical Marijuana Patients, Caregivers
The palliative use of marijuana statute, separate from RERACA, prohibits an employer from refusing to hire or from terminating an individual solely because of their status as a medical marijuana patient or caregiver.
The employer still can prohibit cannabis use during work hours and may refuse to hire or terminate employment if required by federal law or federal funding.
If an employer receives a positive THC test result from an applicant or employee with a valid medical marijuana card, the employer should tread lightly, as adverse employment decisions cannot be based solely on patient or caregiver status.
RERACA does not address alcohol testing.
However, other Connecticut laws that focus on drug testing appear to apply to alcohol.
If an employer uses urinalysis testing, the methodology above must be followed.
Employers should be aware that other methods, such as breathalyzers or hair tests, lack state guidance and may be used at the employer’s own risk.
Potential Civil Liability
Starting July 1, 2022, if an individual is wrongfully terminated or not hired solely because of a positive THC test, they may bring a civil action against the employer within 90 days of the violation.
If the individual prevails, they may be entitled to the reinstatement of employment or job offer, back wages, and reasonable attorney’s fees and costs.
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