Littler: Connecticut Legalizes Recreational Marijuana, Will Allow Employers to Continue Prohibiting Recreational Marijuana Use

 

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Connecticut Governor Ned Lamont recently signed Senate Bill 1201, making Connecticut the 19^th state to legalize recreational marijuana for adults 21 years or older.  The new law not only requires expungement of certain existing marijuana convictions, but also creates employment protections for recreational marijuana users.  While these protections are more limited than those recently recognized in neighboring states New York¹ and New Jersey,² Connecticut employers should review current policies and practices to ensure they are prepared for the changes by July 1, 2022, the effective date of the new employment provisions. Notably, the new law expressly permits employers to continue to prohibit employees from engaging in the recreational use of marijuana, subject to certain statutory requirements.  Employers that wish to take action based on positive recreational marijuana test results must carefully comply with those requirements.  A positive marijuana test result, standing alone, otherwise will be insufficient to justify adverse employment action. Drug-Free Workplace Provisions Under Connecticut’s New Law Employers in Connecticut should be aware of the following key employment provisions:

• Workplace Use/Possession Can be Prohibited.  Employers may continue to prohibit the use or possession of marijuana during work hours, on employer premises and while using an employer’s equipment or other property.

• Employers Should Update Their Drug-Free Workplace Policies.  Employers may continue to take adverse employment action based on recreational marijuana use provided a written policy is in effect to prohibit such use.  Similarly, the law expressly allows employers to rescind conditional offers of employment to applicants who test positive for recreational marijuana use, provided the policy is made available to the applicant at the time the offer is made.

• A Written Policy is Not Required to Support Reasonable Suspicion Drug Testing.  Employers are permitted to take adverse action against an employee who fails a reasonable suspicion drug test for marijuana, even if the employer has not implemented a written policy.  (Of course, urinalysis testing—other than federally mandated testing—must continue to satisfy the Connecticut workplace urinalysis testing law).³

• Certain Industries are Expressly Exempt from Provisions Prohibiting Adverse Action Absent a Written Policy.  Although the new law lacks clarity, it appears that employers in certain industries, including but not limited to mining, utilities, construction, transportation and delivery, healthcare or social services, educational services, and justice, public order or safety activities are specifically exempted from the statutory provisions prohibiting adverse employment action unless taken pursuant to a written policy.

• Certain Positions are Also Expressly Exempt.  Employees in certain positions are also expressly excluded from protections offered workers who engage in off-duty recreational marijuana use.  Express exemptions include, but are not limited to, positions regulated by the Department of Transportation (DOT), positions funded by federal grants, positions requiring supervision of children, medical patients or vulnerable persons, and positions with any potential health/safety impact (as determined by the employer). Individuals working in these positions are not entitled to legal protection for off-work marijuana use.

Prohibited Employer Conduct Once effective, the new law will largely prohibit adverse action by a non-exempt employer absent a written substance abuse/testing policy establishing rules against recreational marijuana use outside of work.  This prohibition will affect testing of employees as well as applicants.  Absent such a policy, non-exempt employers will be prohibited from taking adverse action based on a positive marijuana drug test unless the employer had reasonable suspicion an employee was under the influence at the time of referral for testing.  Notably, the law reinforces the previously established protections for medical marijuana users already recognized under Connecticut law.⁴ Significantly, the new law will expressly permit employees to pursue a private cause of action if the employer fails to observe its employment provisions.  Any applicant or employee who prevails in asserting such a claim may be entitled to back pay, reasonable attorneys’ fees and costs and other damages, or an order for reinstatement. What Employers Should Do Now Connecticut employers with rules prohibiting recreational marijuana use and those who test for marijuana should manage for compliance now, before the law becomes effective in 2022.  Employers are encouraged to review and update their existing drug-testing policies or implement a written policy if one is not already in place.  If your organization is using urine drug testing, keep in mind that the provisions of Connecticut’s general drug-testing statute regulating the use of urinalysis remain in place. Employers subject to federal drug-testing requirements (e.g., testing required by the DOT) should continue testing as mandated by federal law and seek guidance as necessary for state law compliance relating to its non-regulated workforce.   Footnotes