Clearing the Fog: What Employers Should Look Out for Following Connecticut’s Legalization of Recreational Cannabis

Following in the footsteps of New Jersey and New York, Connecticut became the most recent state in the Northeast to legalize recreational use of marijuana. On June 22, 2021, Connecticut Gov. Ned Lamont signed An Act Concerning Responsible and Equitable Regulation of Adult-Use Cannabis (RERACA), which permits adults ages 21 and older to possess and use recreational cannabis. The new law comes with some limited employment protections for off-duty cannabis use, but the law’s provisions affecting employers will not take effect until July 1, 2022.

RERACA Expands Employment Protections for Off-Duty Recreational Cannabis Use While Giving Employers Flexibility to Implement Zero Tolerance Policies

Under the new law, an employer may implement a policy prohibiting the possession, use or consumption of cannabis by an employee, except for qualifying medical cannabis patients, provided such policy is: (i) in writing in either physical or electronic form, and (ii) made available to each employee prior to the policy’s enactment. In addition, the law requires employers to make any such policy available to each prospective employee at the time the employer makes an offer or conditional offer of employment to the prospective employee.

RERACA further provides that employers shall not discharge from employment or take any adverse action against any employee or prospective employee with respect to compensation, terms, conditions, refusal to hire or other privileges of employment because such employee or applicant smoked, vaped, aerosolized or otherwise used or uses cannabis products outside of the workplace, unless such adverse employment action is made pursuant to a written disseminated policy established by the employer, or unless failing to take an adverse action would cause the employer to violate a federal contract or lose federal funding. Therefore, without a written and communicated drug testing policy, an applicant who tests positive for THC, the active ingredient of cannabis, based on lawful off-duty recreational cannabis use will have employment protections from discrimination as of July 1, 2022, unless an employer or position is exempted (as discussed below) or an employer is required to conduct drug testing in accordance with federal or state law (i.e., U.S. Department of Transportation-regulated positions).

Notably, this employment provision is a significant departure from other recently enacted recreational cannabis legalization laws, such as New York and New Jersey, where this type of zero tolerance policy would run afoul of those states’ broad employment protections for lawful off-duty cannabis use. Unlike those neighboring states, Connecticut employers retain the flexibility to implement a zero tolerance drug and alcohol policy pursuant to a written and distributed policy, subject to certain exceptions for qualifying medical cannabis patients. As a result, the differences among the states will present issues for employers with employees in the tri-state area to consider.

How Will This Impact Drug Testing?

Employers are still permitted to conduct workplace drug testing in accordance with state law. Specifically, nothing in the new law limits an employer from taking adverse employment action based upon: (i) an employer’s reasonable suspicion of an employee‘s use of cannabis while performing work responsibilities at the workplace or on call, or (ii) an employer’s determination that an employee manifests “specific, articulable symptoms of drug impairment, while working at the workplace or on call that decrease or lessen the employee's performance of the duties or tasks of the employee's job position.” Such symptoms of impairment may include but are not limited to:

• Symptoms of the employee's speech, physical dexterity, agility, coordination, demeanor, irrational or unusual behavior, or negligence or carelessness in operating equipment or machinery
• Disregard for the safety of the employee or others or involvement in any accident that results in serious damage to equipment or property
• Disruption of a production or manufacturing process
• Carelessness that results in any injury to the employee or others

Generally, a positive test result for THC shall not form the sole basis for refusing to hire or refusing to continue to employ or otherwise penalize prospective or existing employees, unless (1) failing to do so would violate a federal contract or cause an employer to lose federal funding; (2) the employer reasonably suspects on-the-job usage or impairment as described above; or (3) the drug test result was based on a random drug test of an existing employee or a preemployment drug test of a prospective employee with a conditional job offer, pursuant to an employer’s written and distributed policy that a positive drug test for THC may result in an adverse employment action.

RERACA also clarifies that the drug testing provisions under the new law do not apply to employers who are required to conduct drug testing pursuant to: (i) DOT regulations; (ii) any federal contract or grant that requires preemployment drug testing of applicants as a condition of receiving the contract or grant; (iii) any federal or state laws that require drug testing for safety or security purposes; or (iv) a valid collective bargaining agreement (CBA) that addresses drug testing of applicants, conditions of hiring, or conditions of continued employment for applicants.

Federal contractors that are subject to DOT drug testing requirements for safety-sensitive and other DOT-regulated positions, which prohibit the use of cannabis and other Schedule I drugs for any reasons, will not be impacted by RERACA. The Drug-Free Workplace Act (DFWA) requires certain federal contractors and all federal grantees to agree that they will make a good-faith effort to maintain drug-free workplaces as a precondition of receiving a contract or grant from a federal agency. In Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Nursing & Rehab. Ctr., D. Conn., No. 3:16-cv-01938 (Sept. 5, 2018), a Connecticut federal court rejected a government contractor’s arguments that it was exempt from complying with employment protections provided for qualifying patients under Connecticut’s Palliative Use of Marijuana Act because its zero tolerance drug policies complied with the DFWA. The court concluded that the DFWA does not prohibit federal contractors from employing someone who uses medical cannabis outside of the workplace. Employers in Connecticut should expect that a similar finding would apply to the state’s employment protections for off-duty recreational cannabis use. Therefore, federal contractors should proceed with caution and implement written drug testing policies in compliance with RERACA.

Which Employers Does RERACA Cover and Are There Any Exempted Positions?

Although RERACA applies to a broad array of employers, it includes exemptions for certain employers, including employers whose primary activity is mining, utilities, construction, manufacturing, transportation or delivery, educational services (including kindergarten to grade 12, colleges, universities and professional schools), health care or social services, justice and public safety activities, and national security and international affairs. The law also includes exemptions for certain positions, including:

• Firefighters
• Emergency medical technicians
• Police officers and correctional officers
• Positions that are required to operate a motor vehicle, for which federal or state law requires submission to screening tests, including positions requiring a CDL and positions subject to DOT drug and alcohol testing
• Positions that require OSHA certification of completion in construction safety and health
• Positions that require U.S. Department of Defense (DOD) or U.S. Department of Energy (DOE) national security clearance
• Positions for which the law’s employment provisions are inconsistent or conflict with an employment contract, CBA or federal law, or which are funded in whole or in part by a federal grant
• Positions that receive federal grants, or require supervision or care of children, medical patients or vulnerable persons
• Positions with the potential to adversely impact the health or safety of other employees or the public, as determined by the employer
• Positions at a nonprofit organization or corporation whose primary purpose is to discourage the use of cannabis, or any other drug, to the general public

What Does This Mean for Connecticut Employers?

Nothing in the state law requires an employer to allow or accommodate employees using, consuming, possessing or being under the influence of cannabis while performing duties or on company premises, except possession of palliative cannabis by a qualifying medical cannabis patient. Therefore, employers can maintain a drug and alcohol-free workplace. Additionally, a written and disseminated drug testing policy allows for employers to rescind a condition job offer, discipline or terminate an applicant or employee for testing positive based on off-duty cannabis use. However, employers must be mindful that employers cannot discriminate against employees or applicants on the sole basis of their status as qualifying medical cannabis patients under the Palliative Use of Marijuana Act. Without a written drug testing policy, hiring managers, HR professionals and supervisors will need to be trained about the law’s prohibition on any adverse employment action triggered by lawful off-duty recreational cannabis use. The new law provides a private right of action for aggrieved employees to file a lawsuit in Connecticut state court within 90 days of an alleged violation. If successful, prevailing plaintiffs may be awarded reinstatement of their previous employment or job offer, back wages and reasonable attorneys’ fees and costs. The statute also provides a number of defenses available to employers, such as:

• The employer or position was exempted.
• The employer acted based on a good-faith belief that an employee used cannabis in the employer's workplace, while performing the employee's job duties, during work hours, or while on call in violation of the employer's written policies.
• The rescinded job offer based on the THC-positive preemployment drug test was made pursuant to the employer’s written (and disseminated) policy.

When Does RERACA Go Into Effect?

While many aspects of the law will become effective on July 1, 2021, the employment provisions will not take effect until July 1, 2022. Thus, while covered employers have some time to implement compliant policies before the law becomes effective, prudent employers should start reviewing their current drug screening and testing policies and processes with employment counsel soon to prepare for upcoming changes in the law. Employers should also consider how and when to disseminate such written policies to employees and applicants. Additionally, employers should train HR and managers about the company’s policies, how to handle requests for accommodation related to medicinal cannabis use based on a disability, and how to recognize and document an employee’s objective signs of impairment.