Seyfarth Synopsis: In the first six months of 2021, several states legalized marijuana for recreational and medicinal purposes, including New York, New Jersey, Virginia, and New Mexico.  States show no signs of slowing down.  On June 22, 2021, Connecticut Governor Ned Lamont signed a bill that legalized recreational marijuana use by adults 21 years and older.  

Although provisions relating to possession are effective now (as of July 1, 2021), the employment-related provisions are not effective until July 1, 2022.  Because the new law will prohibit many employers from taking certain actions in the absence of clear policies addressing marijuana use or evidence of impairment, Connecticut employers that do not have written drug and alcohol testing policies should consider developing them in the near future and those companies that have policies in place should review and, if necessary, revise their current drug and alcohol testing policies.  In addition, all employers should consider training their managers on making reasonable suspicion determinations.

Can employers still maintain a drug and alcohol-free workplace?

Yes.  Employers do not have to tolerate employees being under the influence of marijuana while they are working and they may prohibit employees from using and possessing marijuana during work hours and while performing their job duties or on company premises.  However, employers still must be mindful of the state law protections currently available to medical marijuana users including, among other things, not taking adverse action or otherwise discriminating against someone based solely on their status as a qualifying medical marijuana patient or their possession of medical marijuana.

What rights do Connecticut employers have if they have a drug-free workplace policy?

If an employer has in place or implements a drug-free workplace policy that prohibits employee use or possession of marijuana and such written policy is made available to employees prior to enactment, the employer can take action against an employee who uses recreational marijuana or tests positive for recreational marijuana as part of reasonable suspicion and random drug testing.  In the case of a job applicant, an employer can rescind an offer or a conditional job offer if an applicant tests positive for recreational marijuana so long as the employer makes the policy available to the applicant at the time of offer.

Does the law exempt any industries or positions?

Connecticut’s law has more exemptions than typically are seen in other recreational marijuana laws.

• For instance, it sets out a variety of industries exempt from the employment-related sections of the law, including those in manufacturing, construction, transportation or delivery, utilities, educational services, healthcare, social services, mining, and several others.
• Certain positions also share the same exemption, including (among others) firefighters, emergency medical technicians, law enforcement, Department of Transportation-regulated workers, positions requiring a Department of Defense or Department of Energy security clearance, positions requiring supervision or care of children, medical patients or vulnerable persons, positions with the potential to adversely impact the health or safety of employees or members of the public, as determined by the employer, positions requiring certification of a course in construction safety and health approved by the federal Occupational Safety and Health Administration (a voluntary program that provides training to workers on the recognition, avoidance, abatement, and prevention of safety and health hazards in workplaces in the construction industry), and positions in which the law would be in conflict with the provisions of an employment contract or a collective bargaining agreement.
• In addition, the law does not apply to drug testing, conditions of employment, or hiring practices for employers required to test in accordance with: (a) Department of Transportation regulations; (b) any contract entered into between the federal government and an employer or any grant of financial assistance from the federal government to an employer that requires drug testing of job applicants as a condition of receiving the contract or grant; (c) any federal law or state statute, regulation, or order that requires drug testing of job applicants for safety or security purposes; or (d) any applicant whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses certain topics, including drug testing.

Can employers still conduct reasonable suspicion drug tests and take action based on the results?

Yes, even if the employer does not have a drug-free workplace policy.  The new law describes the standards the employer must meet under this scenario: where the employer has (a) reasonable suspicion that an employee is using marijuana while working at the workplace or on call, or (b) determined 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 their job duties or tasks, including, but not limited to, (i) symptoms of the employee’s speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery, (ii) disregard for the safety of the employee or others, or involvement in any accident that results in serious damage to equipment or property, (iii) disruption of a production or manufacturing process, or (iv) carelessness that results in any injury to the employee or others.

What are the remedies if an employer violates the law?

Aggrieved individuals have a private right of action and may bring a lawsuit in Connecticut superior court within 90 days of an alleged violation.  Prevailing individuals may be awarded reinstatement of their job or job offer, back pay, attorneys’ fees, and costs.  However, certain good faith and other defenses may be available to an employer alleged to have violated the law.

Next steps for employers

While the new Connecticut law generally allows employers to continue to prohibit employees from using recreational marijuana, they must follow the mandates of the law before doing so.  Connecticut employers should consult experienced employment counsel to determine what modifications to their drug testing policies may be necessary in light of the new law and Connecticut’s medical marijuana law, which provides broader protections to employees who lawfully use medical marijuana, or to develop a written policy.  Employers conducting urinalysis drug tests in Connecticut also must ensure their policies and practices comply with the state’s drug testing statute.