Articles

The Connecticut Law Tribune

July 23, 2012

 

Governor Malloy recently signed into law House Bill 5389, making Connecticut the seventeenth state to allow physicians to prescribe marijuana for medical use to certain qualifying individuals.  The new law is entitled “An Act Concerning the Palliative Use of Marijuana” (“Act”) (Public Act 12-55).  Now Connecticut employers must determine if this law forces changes to their policies and practices.

What the New Law Allows and Protects

The Act allows the palliative use of marijuana for qualifying patients who register with the Connecticut Department of Consumer Protection and comply with the requirements of the Act, without being arrested, prosecuted, or penalized.  A “qualifying patient” is one who is at least eighteen years old, a Connecticut resident, and has a debilitating medical condition.  A “debilitating medical condition” is defined under the Act as cancer, glaucoma, AIDS, epilepsy, Parkinson’s disease, multiple sclerosis, posttraumatic stress disorder, Crohn’s disease, and other conditions.  The qualifying patient must receive a written certification from a physician which states the patient has a debilitating medical condition and the potential benefits of the palliative use of marijuana would likely outweigh any health risks.  The amount the patient is prescribed is that amount “reasonably necessary to ensure uninterrupted availability for a period of one month.”

Under the Act, a person who has agreed to undertake responsibility for managing the well-being of the qualifying patient and is over the age of eighteen is a “primary caregiver” and is also protected under the Act.

Connecticut’s medical marijuana law goes further than similar laws in other states because it creates employee rights.  An employer, defined as one who employs one or more employees, cannot refuse to hire, discharge, penalize or threaten employees based on their status as a qualifying patient or primary caregiver.  Employers cannot treat qualifying patients or primary caregivers differently, knowing they are using marijuana or aiding another in using it, pursuant to the new law.

Employer’s Rights

The Act prohibits the use of intoxicating substances during work hours and allows the employer to discipline employees who either use marijuana or are under the influence of marijuana, during work hours.  Further, employers are permitted to take action that may be required by federal law or to obtain federal funding even if the action is based on an employee’s status as a qualifying patient.

So Can Employees Use Marijuana at Work?

Unequivocally, no!  If an employer knows an employee is a qualifying patient and is using marijuana, the employer cannot discipline the employee absent evidence that the employee is using or under the influence of marijuana during work hours.  The real question is how will an employer know the employee consumed marijuana at work?  Of course, if the employee is caught smoking marijuana at work, the answer is clear.  However, the challenge is how else can you catch an employee under the influence?  Because drug tests only indicate the person used marijuana at some point over the last few weeks, drug testing is not the answer.  The only remaining answer is your supervisor’s power of observation and this method is fraught with peril.  According to the National Highway Traffic Safety Administration, the effects of smoking marijuana peek within ten to 30 minutes and the high lasts approximately two hours.  Most behavioral and psychological effects return to baseline level after three to five hours, however, the residual effects in specific behaviors can last up to 24 hours.  Unless your employee’s actions are extreme, it appears the likelihood of catching anyone through observation is minimal unless ingestion occurred immediately before work.  With each passing hour, the likelihood of detection drops precipitously.

In this same vein, employers must be careful not to assume because employees are qualifying patients, their unusual behavior is attributable to their use of marijuana.  Without demonstrable evidence, such a conclusion will be hard to justify.

So What Should Employers Do Now?

This new law will affect those employers who use drug testing as part of their hiring process.  Under current federal law, drug testing procedures need to recognize that employees could test positive for drugs that are legally prescribed.  In most cases, under federal law, the employee should not be adversely affected at work.  An employee who is a qualifying patient who registers positive for marijuana is in the same position but under state law.  For employers who use random drug testing, the same issue can arise.  Regardless of why you drug test, if you do, be sure your policy gives the employee/applicant the opportunity to explain a positive result based on legally prescribed drugs.

Next, if the employer is receiving any federal funding and is certifying that the workplace is drug-free as a part of that funding, then the employer is allowed to take actions based on the employee’s status as a qualifying patient but what comes next is unknown.  Presumably, the employee will claim protection under state law and here comes the conflict.  Without more guidance, we do not know which law (and which party) will prevail.  Before taking any action in this instance, you should seek legal counsel and possibly advice from the state and/or federal government, such as the Connecticut Department of Consumer Protection.

Another consideration is how the ongoing physical and mental impairment of an employee who has used marijuana, will be treated.  While the new law prohibits the use of marijuana that endangers the health or well-being of others, and employers can discipline employees under the influence of marijuana, how would an employer show the user is experiencing residual effects of the drug from the long-term use of it?  This is a hot button issue for marijuana legalization advocates since they claim there are no long-term or residual effects while opponents claim the opposite.  Again, this issue has no clear resolution and we urge you to seek legal counsel before making this argument.

Conclusion

What we know is that your policies must account for the legal use of medical marijuana.  We also know that use of marijuana at work remains a legal basis for discharge.  The unknowns revolve around federal laws that prohibit marijuana use.  Such blanket prohibitions are not valid under state law.  As of now, at least seventeen states may have this conflict; the issue should come to a head.  Hopefully, you will not be the test case that clarifies this issue.