Posted by Betsy Ingraham in Employment Law
Jan 26 2023
On January 10, 2023, Connecticut dispensaries opened for the sale of recreational marijuana for the first time in the state’s history. Employees who choose to partake may have some questions, about how – if at all – this might affect them in the workplace. Can employers still prohibit workers from using marijuana products at all? Can workers be tested for the drug? If an employee is found to be consuming marijuana products, could he or she be subject to discipline or even termination? The answer, as with so many things, is “it depends.”
As a common-sense starting place, the newly expanded availability of marijuana does not mean that employers are required to allow their employees to use it at work. It is the same as alcohol or any intoxicant; employers have the right to prohibit workers from being impaired while on the premises. Employers can also prevent workers from having marijuana in their possession on the workplace premises. And employers can legally test workers if they have a reasonable suspicion that an employee is under the influence during working hours. But what about off-site and off-company time?
The answer generally turns on whether the employer has a specific policy against the out-of-work use of marijuana. If the employer has such a policy, it can lawfully discipline or terminate an employee for violating it, even though recreational marijuana is legally sold in Connecticut and can be lawfully used outside of work. For the policy to be enforceable, it must be in writing and made readily available to all employees and prospective hires.
If there is no such written policy, the law prohibits an employer from disciplining or terminating an employee for using marijuana outside of work. The law also prevents an employer from discriminating against or taking any adverse action against an employee who used marijuana in the past. And if the employee happens to have a drug test that is positive for marijuana, the employer can only penalize the worker when there is a reasonable suspicion that he or she was under the influence at work or the test was used pursuant to an employment policy like a union contract.
Like many laws, however, there are exceptions. Several large industries and many job positions are exempt from the prohibition against discipline for the use of off-site marijuana. This includes firefighters, EMTs, police or correctional officers, educational workers, construction and utility workers, and those in healthcare and social services. Even in the absence of a specific written policy, these workers can be disciplined or even fired for outside marijuana use. Employees in these roles should be extremely cautious about marijuana use, even outside work, despite the fact that it is now legal and readily available in Connecticut.
If an employer covered by the recreational marijuana law violates it in any way, employees can file a lawsuit to vindicate their rights in court. A wrongfully terminated employee may be entitled to recover a range of damages, including back pay or even reinstatement to their former job.
Medical marijuana use is subject to different laws, although the jobs and industries outlined above may still enforce a zero-tolerance policy for safety reasons. Employees who use marijuana for medical purposes may be covered by the Americans with Disabilities Act, which provides an expanded set of protections and imposes greater obligations on the employer to accommodate marijuana use, or the related Connecticut Fair Employment Practices Act. Employees also have protections under Connecticut’s Palliative Use of Marijuana Act (or PUMA), which allows qualifying Connecticut residents 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.
In short, an employer who wants to prohibit off-site marijuana use can still do so in Connecticut, despite the fact that the drug can now be legally purchased and consumed. Employees should be aware of their employer’s position on this issue before engaging in any activity that might violate a specific written policy of their employer.
Posted by Betsy Ingraham in Employment Law
Tagged Betsy Ingraham
