26 Aug

August 2021 Connecticut HR Legal Updates

Posted at

1:40pm

in

Recreational Marijuana Use Legalized in Connecticut

Update Applicable to:
All employers in Connecticut.

What happened?
On June 22, 2021, Governor Lamont signed Senate Bill (SB 1201) into law. 

What are the details?
The law, effective July 1, 2022, legalizes recreational marijuana use for adults 21 and older, requires expungement of certain existing marijuana convictions, and creates employment protections for recreational marijuana users. With certain statutory requirements, the law expressly permits employers to continue prohibiting employees from recreationally using marijuana. Employers that wish to take action based on positive recreational marijuana test results must comply with the requirements as a positive test alone will be insufficient to justify adverse employment action.

The law provides several provisions to employers that work to maintain a drug-free workplace.

  • Employers may continue to prohibit the use or possession of marijuana during work hours, on employer premises, and while using an employer’s equipment or other property.
  • Employers may continue to take adverse employment action based on recreational marijuana use, provided a written policy is in effect to prohibit such use.  Similarly, the law expressly allows employers to rescind conditional offers of employment to applicants who test positive for recreational marijuana use, provided the policy is made available to the applicant when the offer is made.
  • Employers are permitted to take adverse action against an employee who fails a reasonable suspicion drug test for marijuana, even if the employer has not implemented a written policy. 
  • Although the new law lacks clarity, it appears that employers in certain industries, including but not limited to mining, utilities, construction, transportation and delivery, healthcare or social services, educational services, and justice, public order, or safety activities are specifically exempted from the statutory provisions prohibiting adverse employment action unless under a written policy.
  • Employees in certain positions are also expressly excluded from protections offered to workers who engage in off-duty recreational marijuana use.  Express exemptions include, but are not limited to, positions regulated by the Department of Transportation (DOT), positions funded by federal grants, positions requiring supervision of children, medical patients or vulnerable persons, and positions with any potential health/safety impact (as determined by the employer). Individuals working in these positions are not entitled to legal protection for off-work marijuana use.

The new law will also prohibit adverse action by non-exempt employers without a written substance abuse/testing policy establishing rules against recreational marijuana use outside of work. This will impact the testing of both applicants and employees as, without a policy, employers will be prohibited from taking adverse action based on a positive marijuana drug test unless the employer had reasonable suspicion an employee was under the influence at the time of referral for testing.

The law can be read here.

An article on the law can be found here.

What do employers need to do?
Employers should review the law here as well as their drug testing and marijuana policies to update and add any applicable policies to be in compliance by the time the law is in effect. The law firm, Littler Mendelson P.C., recommends employers review and update their existing drug-testing policies or implement a written policy if one is not already in place.  If an employer is using urine drug testing, keep in mind that the provisions of Connecticut’s general drug-testing statute regulating the use of urinalysis remain in place. Employers subject to federal drug-testing requirements should continue testing as mandated by federal law and seek guidance as necessary for state law compliance relating to their non-regulated workforces.

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