Marijuana Legalization: What Connecticut Employers Must Know – CBIA

On July 1, 2021, it will be legal in Connecticut for people 21 or older to possess and consume cannabis.

An individual will be able to have up to 1.5 ounces of cannabis on their person, and a maximum of five ounces in a locked container in their home or car.

But what does this mean for Connecticut employers? Do they now have to allow their employees to use marijuana at work?

The short answer is no.

But it’s important for business owners and managers to understand whether—and to what extent—the new law impacts their workplace.

Connecticut employers can navigate the new law in four steps.

The law legalizing marijuana use—known as RERACA, or Responsible and Equitable Regulation of Adult-Use Cannabis—includes specific limitations on what some employers can, and cannot do, when their employees use cannabis.

The operative word in that last sentence is “some” employers, as the law specifically exempts many types of businesses from the new requirements.

Employer Exemptions

Step 1: Determine whether the employer falls into one of these nine exemptions:

• Mining
• Utilities
• Construction
• Manufacturing
• Transportation
• Education
• Healthcare and social services
• Justice, public order, and safety
• National security and international affairs

Employers in these industries are exempt from the requirements of the new law.

These employers, then, should simply take this opportunity to review—or create—their drug and alcohol policies, and ensure that they’re in compliance with current state and federal law, without reference to the legalization of marijuana.

For example, employers should revisit the rules governing random and pre-employment drug testing, reasonable suspicion testing, and accommodations for those with medical marijuana cards.

Exempt Positions

Step 2: For those employers who do not fall within one of the nine exempt categories, the second step is to determine whether they employ any of these exempt positions:

• Firefighter
• EMT
• Police or correctional officer
• Drivers for whom drug screening is required by state or federal law
• Positions requiring OSHA certification in construction safety
• Positions requiring a Department of Defense or Department of Energy national security clearance
• Those governed by an employment contract or collective bargaining agreement that conflict with this law
• Positions governed by conflicting federal law
• Positions funded by federal grant
• Supervisor of children, medical patients, or vulnerable persons
• Those with the potential to adversely impact the health or safety of others
• Positions at a nonprofit, the primary purpose of which is to discourage drug use

Nonexempt businesses that have exempt and nonexempt positions must remember that the marijuana law’s restrictions on employer conduct, as described below, apply only to the nonexempt employees.

Employers should remember that in this context, the term “exempt” and “nonexempt” refers to the marijuana law, not the traditional “exemption” from wage and hour laws.

Employer Rights

Step 3: Employers who are not exempt and employ nonexempt workers must understand what an employer can do with respect to restricting drug use and possession at the workplace.

The new law places some restrictions on an employer’s ability to take adverse action against employees who may have used cannabis.

However, it’s important that employers first understand that the law does not change the common sense rules that have traditionally applied to drug and alcohol use at the workplace.

For example, with the exception of specific rules allowing accommodations for the possession of medical marijuana, employers:

• Do not have to permit employees to work while high, nor allow them to possess, use, or otherwise consume marijuana while working or while on employer premises
• May enforce a policy—if in writing and disseminated to employees—prohibiting marijuana possession, use, or other consumption, including outside the workplace
• May insist on maintaining a drug and alcohol-free workplace 
• May discipline a worker if they have reasonable suspicion the employee used marijuana while at work 
• May discipline a worker if they determine that he has specific symptoms of drug impairment
• May require drug testing and take adverse action against those who fail a drug test, providing the employer follows a specific, written policy.

Restrictions

Step 4: Finally, understand the new law’s restrictions on employer conduct as it relates to employee marijuana use. 

Specifically, the law prohibits an employer from discharging or taking adverse action against an employee, based on the employee’s use of cannabis outside of work—unless the employer has a written policy providing for that discipline.

Second, unless an employer is subject to a federal contract or receives federal funding, it may not take adverse action against an employee or applicant based on their use of cannabis before becoming employed.

Third, the law limits an employer’s ability to penalize an employee or applicant, based solely on a drug test that came back positive for THC.

In such circumstances, the employer may penalize the worker only where there’s reasonable suspicion of the worker’s use of cannabis while at work, the worker showed specific symptoms of drug impairment while working, or the employer used a random drug test pursuant to an employment policy.

Employers should be aware that the new law allows employees and applicants to file suit in state court, alleging violations of the rules, outlined in the fourth step above.

Successful plaintiffs may be awarded reinstatement to a lost job, back wages, and attorneys fees.

Impact

Connecticut’s legalization of marijuana is bound to impact employers of all sizes across the state.

The provisions pertaining to employers take effect July 1, 2022.

So what should business owners do in the meantime? 

First, follow the steps above to educate yourself on the law.

Second, create, review, update, and disseminate your drug and alcohol policy.

And third, emphasize to your employees that the legalization of marijuana does not mean that they can show up to work high. 

For more information, call CBIA’s HR Hotline at 860.244.1900. The HR Hotline is a free service for CBIA members.