Connecticut’s New Marijuana Law is Not for Everyone

           Things are about to change for employers and their employees who use cannabis come July 1st. On that date, most employers in Connecticut will no longer be able to prohibit their employees from using cannabis products when off-duty. And employers will not be able to discipline employees or fire them for using marijuana when off-duty.

            This raises a whole host of questions for employers and employees.

            I look at it this way, though, if you want to take a common-sense approach. As of July 1st, treat cannabis use – for the most part – like alcohol use. An employer won’t expect or allow an employee to show up for work drunk. And if the employee does show up in an intoxicated state, the employer is going to be within his rights to take appropriate disciplinary action.

            The same is true for marijuana use generally. Any employer can take disciplinary action up to and including termination of an employee who uses at work or is impaired at work. Possession of cannabis during work hours while on the employer’s premises or while using the employer’s equipment or property can still be prohibited by the employer.

            Employers are still able to prohibit recreational use of marijuana by employees outside of work only if they have an updated “Drug-Free Workplace Policy” that is in writing and published to employees advising each employee of the policy and of the potential discipline for violation of the policy.

            That means that any employer who currently has a drug-free workplace policy should be updating it by July 1st. If there is no policy in place and the employer wants to prohibit recreational cannabis use, the employer should put a policy in place by July 1st.

            Employers can still rescind conditional offers of employment to prospective employees if the prospective employee fails a pre-employment drug screening for recreational cannabis use. To do so, however, the employer must notify the prospective employee of the policy prior to making the conditional offer.

            This can get confusing.

            Even if an employer does not have a written policy prohibiting recreational cannabis use, the employer can still take disciplinary action against an employee if the employee fails a drug screening based on reasonable suspicion. This means that if an employer has a reasonable suspicion that the employee is working under the influence of drugs or alcohol and the drug screening reveals use of recreational marijuana, the employer can take disciplinary action even if it has not publicized drug-free workplace policy.

            If you think you understand, just wait, there’s more.

            There are certain industries where the allowance of recreational cannabis use does not apply. These are called exempt industries and employers in these industries are “exempt” employers. Employers in the mining, utilities, construction, transportation and delivery, healthcare and social services, educational, justice, or public safety industries are exempted from the recreational use law. That means employees in these industries cannot recreationally use cannabis without consequence.

            In addition, jobs funded by federal grants, jobs requiring supervision of children or vulnerable persons, and jobs regulated by the Department of Transportation are exempt from the law.

            How to sum it up then? Just because recreational marijuana use is legal in Connecticut, you should not assume that your job is safe if you use the drug recreationally. There remain plenty of ways for an employer to hold an employee accountable for recreational marijuana use even after the new law has been in effect.

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