Pullman & Comley: Keep Off the Grass: A Reminder That Employers Must Address the Implications of Connecticut’s Legalization of Recreational Cannabis in the Workplace Before July 1

Pullman & Comley - Labor, Employment and Employee Benefits Law

Beginning July 1, 2022, Connecticut’s law legalizing the recreational use of cannabis for adults 21 and over imposes new restrictions on employers while offering protections for employees who indulge. While that might sound like a “green” light for employees to spark one up before work, there are concrete steps employers can take in advance of the effective date to avoid issues related to cannabis use in the workplace.

Employers May Still Prohibit Cannabis Use at Work and During Work Time

For starters, the new cannabis law makes clear that employers may continue to maintain drug free workplaces and may still prohibit employees from using or being under the influence of cannabis at work or during working time. As discussed below, however, the catch is that employers must have strong written workplace policies governing the use of cannabis, which must be communicated to employees in advance of July 1, 2022.

New Employee Protections for Off-Duty and Non-Work Cannabis Use

Connecticut’s recreational cannabis law also creates new employment protections for certain individuals who work for employers who use recreational cannabis off the clock, including current and prospective employees.

For example, employers who are classified as “non-exempt” under the cannabis statute are prohibited from taking adverse action against a current employee solely on the basis of a positive test or off-duty cannabis use, unless such action is taken pursuant to a written drug-free workplace policy. The policy must be made available to each employee prior to the employer taking adverse action against the employee. Adverse action includes, but is not limited to, written or verbal discipline, demotion and termination of employment.

In the pre-employment context, “non-exempt” employers may no longer refuse to hire a prospective candidate based solely on a positive cannabis test unless it would result in the employer violating a federal contract or losing federal funding.

Due to heightened safety concerns surrounding cannabis use in certain industries, certain types of employers are exempt from needing to provide these new protections and are classified as “exempt employers.” “Exempt employers” include employers in the following industries: mining, utilities, construction, manufacturing, transportation or delivery, educational services, health care or social services, justice, public order or safety activities, national security and international affairs. Certain safety-sensitive positions are also classified as exempt and employers are not required to provide those employees with the employment protections called for by the statute.

Drafting a Drug Free Workplace Policy

Given the new law and the employment protections it provides for many Connecticut employees, it is critical for employers to have strong workplace policies addressing cannabis use. Organizations with existing policies addressing drug use should first determine their exemption status and stance on employee cannabis use, then review their existing policies and hiring procedures to determine whether any changes should be made. If there is no policy in place, the organization should act quickly to create one. A comprehensive policy should:

  • Explain why the employer is implementing a drug-free workplace policy and its commitment to establishing a healthy, safe and productive workplace.
  • Describe the rules and expectations regarding drug and alcohol use and testing including at work, on-call, and off duty. Be specific in describing what is prohibited, including where and when, and ensure the policy also addresses recreational and medical cannabis, illicit drugs, prescription and over-the-counter medications and alcohol.
  • Provide guidance on signs of impairment caused by drug or alcohol use for managers and employees.
  • Outline the types of drug and alcohol testing the employer may require and the corresponding testing procedures. (Note: employers remain subject to Connecticut’s drug testing statute, Conn. Gen. Stat. 31-51t through 31-51aa.)
  • Provide information about assistance for employees struggling with substance abuse.
  • Identify the appropriate person for employees to contact with questions about the policy.
  • Describe the consequences for policy violations, including potential discipline that may be imposed by employers who prohibit off-duty cannabis use.

Communicating the Policy

To minimize legal exposure, employers should be proactive now rather than waiting until a cannabis-related workplace issue arises.  Regardless of an employer’s “exempt” or “non-exempt” status, it should act quickly to inform employees about the new law and how it impacts the workplace before the new employee protections take effect on July 1, 2022. Employers should also communicate the organization’s position on cannabis use and reference any applicable policies.

Employers should also educate and provide training to managers concerning these changes, including training on new or revised hiring and drug testing procedures, recognizing signs of impairment at work, and the implications for employee discipline.

Updating Employment Handbooks and Policies

While most organizations have been predominantly focused on policies related to COVID-19 during the pandemic, it is also important to extend the same focus and treatment to employee handbooks and other non-COVID-19 policies. In the two years since COVID began, there have been numerous changes in law and best practices that may render outdated handbooks non-compliant. Informal or outdated handbook policies create significant risk for employers, and organizations without clear, written policies are opening themselves up to potential liability.

In light of the above, employers should take advantage of this opportunity to review and update their employee handbooks.

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