Complying with Connecticut's Recreational Marijuana Law

While recreational use of marijuana became legal in Connecticut on July 1, 2021, employment related provisions of the new law will not be effective until October 1, 2021, and more dramatically on October 1, 2022. Here is the text of the new law, as well as a summary.

Overview

The new law does not impact the rights of medical marijuana users. Such individuals cannot be denied employment for off-duty use of medical cannabis, unless such use would make them ineligible for employment under federal regulations issued by agencies including the DOT and FAA. Medical marijuana users are not permitted to be under the influence while at work.

Effective October 1, 2021, all employers must prohibit smoking and vaping of tobacco and cannabis “in any area of any business facility under its control.”  This includes all interior spaces, as well as within 25 feet of doors, operable windows, and air intakes. Employers can also prohibit smoking anywhere on its real property.

Previously, employers with 5 or more employees were permitted to establish smoking rooms/areas within the building, or outside. Employers with less than 5 employees were able to permit smoking anywhere, except in designated non-smoking areas.

Given the change to the law, all employers should review their smoking policy and update it by October 1, 2021.

Effective October 1, 2022, most employers with one or more employees must comply with several key aspects of the new law. The most effective way of doing so is to have a comprehensive written policy outlining the company’s position on specific issues, including applicant testing, workplace prohibitions and employee testing, and off-duty use.

Until October 21, 2022, any rules or policies impacting recreational cannabis use need not change, and employers retain the right to screen applicants, deny employment to those testing positive, and terminate employees possessing, using, or testing positive for cannabis, regardless of whether the use was on or off-duty. Employers must continue to follow state drug testing laws, and must not discriminate against employees using tobacco off-duty.

Applicant Testing

Under the new law, an employer must decide whether it will test applicants for cannabis use. If so, it can withdraw a conditional offer following a positive test, provided it has a written policy permitting the testing, and clearly articulates that an offer will be withdrawn based on a positive test result. For the policy to be enforceable, the candidate must be given a copy of the employer’s policy at the time of any offer.

While the law states in one section that employers may not penalize pre-employment use of cannabis, except where doing so would put the employer in violation of a federal contract or cause it to lose federal funding, §97(2)(B), it goes on to say that nothing in §§97-101 shall limit an employer from subjecting an employee or applicant to drug testing, or from taking adverse action, including rescinding a conditional job offer, provided it has a policy spelling out the consequences for failing a pre-hire drug screen. Therefore, while the law’s text is somewhat contradictory, the general overriding language should prevail and permit the recission of a job offer based solely on a positive test, provided a copy of the policy was given to the candidate in a timely fashion.

Workplace Prohibitions and Testing

The new law permits employers to prohibit cannabis use during work hours, and during on-call periods. To be considered “on-call,” the employee must be given at least 24 hours’ notice, and be paid for the duration of the on-call period. For purposes of the Act, the term “employee” includes independent contractors.

As part of its right to maintain a drug and alcohol free workplace, employers may also continue to ban workplace possession, and test those it reasonably suspects of on the job, or on-call, cannabis use. The “workplace” includes any building, real property, parking area, area used by an employee while performing work, as well as employer vehicles. This would include remote work sites.

As opposed to tests for unlawful drugs, a confirmed positive test for cannabis will normally not be enough to take adverse action against current employees. Even if the new positive test standard of “11-nor-9-carboxy-delta-9-tetrahydrocannabinol” is met, any such positive test must be accompanied by a reasonable suspicion that the employee was using cannabis while working or on call. Reasonable suspicion will be supported when the employee manifests specific symptoms like changes in speech, dexterity, agility, coordination, demeanor, behavior or carelessness. In addition, safety violations, disruptions in production, and other similar conduct would support reasonable suspicion.

Reasonable suspicion need not be proven if the positive test alone places the employer in a position where it could lose a federal contract, or funding, or the positive test result stemmed from a random testing program, or a fitness for duty evaluation, outlined in the employer’s written policy, provided such testing complies with federal and Connecticut drug testing rules.

 Off-Duty Use

 Employers will also have the option to ban off-duty possession, use, or consumption of recreational cannabis, provided it is contained in its written policy. By doing so an employer could rely on a lawfully obtained positive test result, regardless of where the use took place. Current employees, however, cannot be penalized for any off-duty use prior to their employment with the employer, or before the issuance of the employer’s policy, whichever is later, unless failing to do so would put the employer in violation of a federal contract, or cause it to lose federal funding. An applicant’s pre-hire positive drug test, however, can result in adverse action, provided such scenario is prohibited by the employer’s policy.

Exemptions

Certain employers are exempt from the new Act, and can operate as they do currently, without following the new law’s requirements. Exempt employers include those primarily engaged in mining, utilities, construction, manufacturing, transportation or delivery, education, health or social services, justice, public order or safety activities, and national security or international affairs.  

In addition, any employee working for an exempt employer, and firefighters; EMTs; police officers; CDL drivers; certain construction workers; security clearance holders; supervisors of children, medical patients, or vulnerable persons; workers in jobs where recreational cannabis use violates obligations under federal law or contracts; or employees whose individual employment contact or collective bargaining agreement bans the use of cannabis; are also exempt from the law’s protections.

Violations

Employees who believe they have been treated in violation of the law may bring a civil action within 90 days of the violation. Relief is limited to reinstatement, back-pay, and attorneys’ fees and costs.

While the new law permits recreational use, under specific conditions, it clearly does not offer applicants and employees unfettered freedom to use cannabis off-duty. Time will tell how employers decide which rights to exercise regarding the off-duty use of cannabis, and whether they will treat marijuana like they do alcohol, or continue to treat it more restrictively, like illegal drugs.

Key Points

-Update workplace smoking policies by 10/1/21

-Develop a comprehensive drug policy by 10/1/22

     -Include treatment of applicants, and employees, both on the job and off-duty

-New law does not apply to exempt employers, and exempt positions, as defined in the law.