Cannabis possession and consumption is now legal for Connecticut residents over 21 years old, with exceptions. The General Assembly’s sweeping cannabis legislation took effect July 1, 2022.
See the related story:
Cannabis Is Legal in Connecticut; What You Need to Know
Although the legislation extends far beyond the employment context, below is a brief overview of certain provisions that employers, employees, and job applicants should be cognizant of going forward.
Affected Employers and Employees
- The legislation sets forth rules that are specific to employers and employees in general, and a specific class of exempt employers and employees.
- Exempt employers include, but are not limited to, (1) utility companies; (2) justice and public safety services; (3) construction services; (4) manufacturing; (5) educational services; (6) health care and social services; and (7) transportation services.
- Exempt employees are those who work for exempt employers or have an “exempt position” as defined in the cannabis legislation.
- Exempt employers are not subject to this new legislation; non-exempt employers with employees holding an exempt position are not subject to the legislation with regard to those employees.
- Independent contractors are deemed “employees” under the legislation.
Employment Accommodations & Anti-Discrimination
- Employers are not required to grant an employee accommodations to perform job duties while under the influence of cannabis, or allow an employee to possess, use or consume cannabis while working or located on the employer’s premises (except for possession of medical marijuana by a qualified patient).
- Employers can implement a policy to this effect, but the policy must be in either physical or electronic form and must be made available to all employees and job applicants when extending an employment offer.
- Employers cannot discriminate against an employee for their status as a qualifying patient using medical marijuana.
Employment Policies & Employer Actions Against Employees
- Notwithstanding Connecticut’s cannabis legislation, employers can still require a drug-free and alcohol-free workplace and require drug testing for employees.
- An employer may take adverse employment action against employees based on (1) a “reasonable suspicion” of cannabis use while the employee is engaged in work responsibilities; or (2) a determination that an employee shows “specific, articulable symptoms of drug impairment” while working that decrease or lessen the employee’s performance of workplace duties. However, these standards do not apply to the exempt employer or exempt positions. Exempt employers have greater flexibility in deciding whether to take any action against employees.
- Employers cannot discharge or take any adverse action with respect to compensation, terms/conditions, refusal to hire or other employment privileges against an employee (or prospective employee) because of their use or non-use of cannabis prior to employment, unless such use or non-use would cause the employer to violate a federal contract or lose federal funding.
- If a job applicant tests positive for cannabis, the applicant generally cannot be denied a job offer on that basis alone, unless certain conditions are established, including but not limited to (1) the employer would violate a federal contract or lose federal funding; and (2) the employer reasonably suspects that the applicant would use cannabis while performing work responsibilities.
Employee Recourse Against Employer
- Employees and job applicants who are aggrieved by an employer’s violation of the cannabis legislation may bring a private cause of action against the employer within 90 days of the alleged violation. Employees and job applicants who prevail may be awarded reinstatement of their position or job offer, and courts are required to award back wages and reasonable attorney’s fees and costs.
- However, an employee cannot bring a legal action against an employer who acted on a good-faith belief that:
* the employee used or possessed marijuana (except medicinal marijuana) in the workplace, while performing job duties, during work hours, or while on call in violation of the employer’s employment policy; or
* due to marijuana use, the employee was unfit for duty or impaired or under the influence of marijuana while at the employer’s workplace, while performing the employee’s job during work hours, or while on call in violation of the employer’s workplace drug policy.
Takeaways for Employers and Employees
- Employers should prepare an employment policy, or update an existing policy, to address marijuana use in the workplace and provide flexibility in making marijuana-related employment decisions.
- Employers should routinely meet with managers and/or human resources personnel to ensure a unified front on workplace marijuana use and reduce legal exposure.
- Employees and job applicants that use medicinal marijuana should retain medical documentation to offer employers upon request.
- Employers, employees and job applicants should, where necessary, consult with a legal professional regarding any questions about Connecticut’s new marijuana legislation. This is particularly prudent if an employer is attempting to regulate its employees’ marijuana use outside of the workplace, notwithstanding the new, general right to use and consume marijuana in Connecticut.
Cramer & Anderson Attorney Joseph P. Mortelliti
Employees with questions or concerns about the new law, and employers with questions or concerns, or those who need assistance establishing formal and enforceable marijuana policies, may contact Cramer & Anderson using the button below or calling our main office at (860) 355-2631.
