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Adult Use of Cannabis – What Employers Need to Know

On June 22, 2021, Connecticut Governor Ned Lamont signed into law An Act Concerning Responsible and Equitable Regulation of Adult-Use Cannabis (the “Act”). Among other things, the Act allows adult possession of up to 5 ounces of marijuana in a locked container, 1.5 ounces if not.

Provisions relevant to employers do not go into effect until July 1, 2022, while all others, such as those pertaining to legalized recreational use and expungement of criminal records, took effect July 1, 2021.

Why Should Employers Care?

The Act permits employers to maintain drug-free workplaces with policies prohibiting possession and use of cannabis by an employee both at and outside of work, as long as an explicit policy is created and disseminated. If policies are in writing and made available to employees before they are enforced so as to provide notice, they will still be considered legal. If employers implement a policy prohibiting cannabis use outside the workplace, they must be aware of Connecticut laws limiting drug testing of current employees and must make reasonable accommodations for use covered under Connecticut’s medical marijuana law.

Drug testing that results in a positive result for marijuana can only lead to an adverse action against current employees when:

  • failing to do so would cause the employer to lose federal funding
  • there is reasonable suspicion of marijuana use while engaged in the performance of the employee’s job responsibilities
  • the employee manifests specific, articulable symptoms of drug impairment while working (as described below)
  • the employer is governed by a collective bargaining agreement that specifically addresses drug testing.

Generally, employers cannot discharge, refuse to hire, or take an adverse employment action against an employee or prospective employee for that individual’s use of cannabis outside the workplace before such individual was hired by the employer, or after in the absence of a specific policy. For the following position, employers will still be allowed to discriminate against candidates based on marijuana use outside of the workplace:

  • a firefighter;
  • an emergency medical technician;
  • a police or peace officer;
  • a position requiring operation of a motor vehicle;
  • a position requiring completion of a course in construction safety and health approved by the Occupational Safety and Health Administration;
  • a position requiring a Department of Defense or Department of Energy national security clearance;
  • a position for which the prohibition is in conflict with a collective bargaining agreement or employment contract;
  • a position for which the prohibition is inconsistent or otherwise in conflict with federal law;
  • a position funded wholly or partially by a federal grant;
  • a position requiring the care of children, medical patients or vulnerable persons;
  • a position with the potential to adversely impact the health or safety of employees or members of the public, in the determination of the employer; and
  • a position at a nonprofit organization, the primary purpose of which is to discourage use of cannabis products or any other drug by the general public.

Currently, adverse actions based on cannabis use at or impacting the work is generally allowable in most circumstances. However, starting July 1, 2022, employers may only take adverse action based on: (1) a reasonable suspicion of an employee’s use of cannabis while engaged in the performance of an employee’s work responsibilities, or (2) determining that an employee “manifests specific, articulable symptoms of drug impairment while working at the workplace or on call that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.”

Employers must be prepared for 2022 when the Act takes effect in the workplace; the potential penalties for failure to do so could be large. Employees and prospective employees may bring a civil actions within 90 days of an alleged violation of the Act’s requirements. Such individuals could be awarded reinstatement, back wages and reasonable attorneys’ fees and costs.

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.