Posted by Employment Lawin
Jul 13 2021
On June 22, 2021, Governor Ned Lamont signed into law the Responsible and Equitable Regulation of Adult-Use Cannabis Act (or RERACA), which broadly legalizes the adult use of cannabis in Connecticut. The law has many facets: criminal, retail, agricultural, taxation, advertising, zoning, consumption, and social services. But because we at Garrison, Levin-Epstein are Connecticut employment lawyers, we are going to focus on the law’s impact on the workplace. So if you’re asking, “Can I be fired for using marijuana on my own time?” keep reading. As we explain, for many of Connecticut’s workers, the law is not all that it’s cracked up to be.
As a review, Connecticut’s 2012 Palliative Use of Marijuana Act (or PUMA) already permits qualifying Connecticut residents to obtain the right to possess and use cannabis for medical reasons, and it prohibits Connecticut employers from refusing to hire, terminating, penalizing, or threatening someone because they participate in the PUMA program or care for someone who does. See Conn. Gen. Stat. 21a-408p(b)(3).
Remember, though, that an employer can still prohibit its employees from using or being under the influence of cannabis – or any other intoxicating substance – while at work. (More on that later.)
This balance hasn’t changed. To the contrary, it has meaningfully expanded. So, whereas the PUMA protected only medical marijuana users from workplace retaliation for their off-duty marijuana use, the new law protects some Connecticut employees who use cannabis recreationally. In other words, many employers cannot prohibit their employees from using marijuana outside of work, nor punish their employees for doing so.
But the exceptions here are massive and threaten to swallow the rule entirely, because so many industries and employees fall outside the law’s protections. The exceptions generally fall into four categories:
- The employer’s failure to enforce a drug testing regime would violate a federal contract or cause it to lose federal funding;
- The employer’s “primary activity” is mining; utilities; construction; manufacturing; transportation or delivery; educational services; health care or social services; justice, public order, and safety activities; or national security and international affairs;
- The employee works in public health or safety (including as a police officer, firefighter, or EMT) or cares for children, medical patients, or vulnerable persons; or
- The employee is subject to a union collective bargaining agreement that regulates drug testing or the off-duty use of marijuana.
Note the breadth of these exceptions. According to the Connecticut Department of Labor and the U.S. Bureau of Labor Statistics, Connecticut has approximately 1.75 million employees. More than 10% work in construction or manufacturing; and another nearly 15% work in healthcare. Altogether, that’s more than one-quarter of the Connecticut workforce that’s not protected by this law. And that does not even count all the police officers, firefighters, public school teachers, nursing home workers, or employees of federal contractors – none of whom are protected by this law either. So before you use cannabis because “it’s legal in Connecticut now,” be careful. You may be putting your job at risk.
Now, if you are one of the employees who is fortunate enough to be protected by RERACA, and you experience retaliation for your off-duty cannabis use, you do have rights. But you have to act quickly to invoke them. Under the law, an employee who is treated unlawfully has only 90 days from the date of the violation to file a lawsuit in court. (By comparison, employees who are subjected to discrimination usually have at least 300 days to make their claims, and people who are injured by negligence – such as in a car accident – generally have two years.)
Finally, as with PUMA, nothing in this new cannabis law allows employees to report to work under the influence. Any employer may terminate any employee (or impose lesser discipline) if it reasonably suspects the employee is using cannabis at work or observes “specific, articulable symptoms” of the employee’s on-the-job impairment (such as slurred speech, decreased coordination, unusual behavior, or carelessness).
In summary, the new law legalizing recreational marijuana does protect some Connecticut workers. But it does not provide nearly the level or scope of protection that many Connecticut workers probably believe they have.