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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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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