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What Employers Need to Know About the New Recreational Marijuana Law

On June 22, 2021, Governor Ned Lamont signed into law Senate Bill 1201, “An Act Concerning Responsible and Equitable Regulation of Adult-Use Cannabis.” The bill covers age restrictions, limits on the amount and type of cannabis/cannabis products an adult may have in their possession; licensing requirements and regulations for cannabis establishments; and other applicable policies. The bill specifically addresses the effect on employers in sections 97 through 101. Section 101 went into effect on July 1, 2021 and Sections 97 though 100 go into effect on July 1, 2022. 

Drug-free Workplace Policies: Implementation & Restrictions 

As of July 1, 2022, employers are not required to make accommodations for employees to perform their duties while under the influence of cannabis or to possess, use or otherwise consume cannabis while performing their duties with exceptions for medical marijuana. 

An employer may implement a policy prohibiting the possession, use or other consumption of cannabis by an employee.* The policy must:

  • contain an exception for medical marijuana;
  • be in writing in physical or electronic form;
  • be made available to employees prior to enactment; and
  • be made available to prospective employees when the employer makes an offer or a conditional offer of employment. 

*Section 88, effective October 1, 2021, requires employers to prohibit the smoking or vaping of cannabis in any area of any business facility under the employer’s control. 

Unless such actions or requirements are made pursuant to or established by such a policy, an employer may not:

  • fire or take adverse action against an employee or prospective employee with respect to compensation, terms, conditions or other privileges of employment because the employee does or does not smoke, vape, or otherwise use cannabis products outside the workplace;
  • fire or take adverse action against an employee or prospective employee with respect to compensation, terms, conditions or other privileges of employment because the employee did or did not smoke, vape, or otherwise use cannabis products prior to being employed with the employer;
  • subject employees or applicants to drug testing; or
  • use a positive drug test showing solely a specific metabolite of THC as the sole basis to refuse to hire an applicant or to fire an employee. 

According to the law, an employer may terminate or take adverse action against an employee for the employee’s use of cannabis products outside the workplace if the employer has established a policy that states otherwise.  So long as an employer has distributed a written policy prohibiting the use of cannabis outside the workplace to its employees and applicants, the employer may take action in accordance with such policy if an employee violates the policy by using cannabis outside the workplace.  The law clarifies employers may not take adverse action or discriminate against employees that are qualifying patients lawfully using medical marijuana outside the workplace pursuant to the Palliative Use of Marijuana Act (“PUMA”).   

While each employer should evaluate their current policies regarding cannabis use outside of the workplace, more safety-sensitive businesses may opt for policies banning cannabis use outside the workplace due to safety-related concerns in the workplace. 

Additionally, an employer is not prohibited from taking appropriate adverse action or other employment action upon:

  • reasonable suspicion of an employee’s use of cannabis while on the job; or
  • determining that an employee manifests specific, articulable symptoms of drug impairment while on the job that affect the employee’s ability to perform their duties**. 

**Section 93, effective July 1, 2022, prohibits the use of a positive drug test showing solely a specific metabolite of THC as proof that an individual is impaired by cannabis without other evidence. 

Effective July 1, 2021, the law does not apply to drug testing, conditions of continued employment or conditions for hiring employees required pursuant to:

  • regulations of the federal Department of Transportation that require drug testing pursuant to 49 C.F.R. 40;
  • federal government contracts or grants of financial assistance from the federal government to an employer conditioned on drug testing of prospective or current employees;
  • federal law or state statute that requires drug testing for safety or security purposes; or
  • any applicant whose prospective employer is a party to a valid collective bargaining agreement that specifically addresses drug testing, conditions of hiring, or conditions of continued employment of such applicant.

Exemptions

 Certain types of employers referred to as “Exempted employers” are not subject to the law.  An “Exempted employer” includes employers whose primary activities consist of mining; utilities; construction; manufacturing; transportation or delivery; educational services; health care or social services; justice, public order, and safety activities; national security or international affairs. 

“Exempted position” means a position:

  • as a firefighter; EMT; or police officer or other law enforcement agent;
  • requiring operation of a motor vehicle for which federal or state law requires drug testing;
  • requiring completion of a course in construction safety and health approved by OSHA;
  • requiring a federal Department of Defense or Department of Energy national security clearance;
  • for which sections 98-101, inclusive, would be inconsistent or otherwise conflict with a provision of federal law;
  • funded in whole or in part by a federal grant;
  • requiring supervision or care of children, medical patients, or vulnerable persons;
  • with the potential to adversely impact the health or safety of employees or members of the public; or
  • at a nonprofit organization or corporation, the primary purpose of which is to discourage use of cannabis products or any other drug by the general public. 

“Exempted employee” means an employee holding an exempted position or working for an exempted employer. 

Additionally, it should be noted that marijuana remains illegal at the federal level.  As such, federal contractors are still subject to the Drug-Free Workplace Act of 1988, which mandates that contractors receiving a federal grant must provide drug-free workplaces as a prerequisite to receiving such federal grant. 

Remedies for Employees 

If an employer has violated a provision of sections 98 or 99 (detailed in Drug-free Workplace Policies section above), an individual aggrieved by such violation may bring a civil action for judicial enforcement within 90 days of the alleged violation. An individual who prevails in such a civil action may be awarded reinstatement of employment or job offer, back wages, and attorney’s fees and costs.

For further information about the new recreational marijuana law, please contact Christopher L. Brigham, Chair of the Employment Law Practice Group at Updike, Kelly & Spellacy, P.C. at (203) 786-8310 or cbrigham@uks.com, Andrew L. Houlding, Principal in the Employment Law Practice Group at (203) 786-8315 or ahoulding@uks.com, Valerie M. Ferdon, Associate Attorney in the Employment Law Practice Group at (860) 548-2607 or vferdon@uks.com; or Jeffrey Renaud, Associate Attorney in the Employment Law Practice Group at (860) 548-2629 or jrenaud@uks.com. 

Updike, Kelly & Spellacy, P.C. would like to thank summer associate Olivia Benson for her contribution to this client alert. 

Disclaimer: The information contained in this material is not intended to be considered legal advice and should not be acted upon as such. Because of the generality of this material, the information provided may not be applicable in all situations and should not be acted upon without legal advice based on the specific factual circumstances.