Recreational use of cannabis may now be legal for adults but that doesn’t mean you can get high at work.
While the state law prohibits employers from termination or otherwise taking adverse action against employees for their recreational marijuana use, the law does carve out a number of protections for employers to ensure the safety of their workplaces.
Legalization in Connecticut was effective July 1. Now, months into the law, many employers are still confused and concerned about the prospect of employees entering the workplace high.
First, it is important to note that the law does not require an employer to allow employees to use marijuana while performing their duties or even to possess cannabis products on the employer’s premises. It also allows an employer to implement a policy prohibiting the use of marijuana by an employee — even outside of work — as long as the policy is in writing and made available to all employees.
Adverse action, including termination, can be taken against an employee for using cannabis outside of the workplace if it is done pursuant to a written policy.
While the law prohibits against refusing to hire or terminating an employee for testing positive for marijuana use, if an employer has a policy against marijuana use and notifies the employee that they are subject to random drug testing for cannabis, it can conduct random drug testing and terminate an employee for prohibited use.
It may also rescind an offer of conditional employment to a prospective employee if that person tests positive for cannabis in violation of the policy. An employer may also test for marijuana use if it “reasonably suspects” an employee used cannabis or if the employee has visible signs of drug impairment while working that decreases or lessens the employee’s work performance.
You can’t go to work high just as you can’t go to work drunk.
As with alcohol, safety and employee productivity are the major concerns for employers. Will workers produce the same quality and quantity of work under the influence of cannabis? Will they be able to legally drive to work? Drive for work?
If employers intend to prohibit workers from using marijuana or intend to conduct random drug testing in the workplace, the employer must be transparent and perfectly clear. Employers who subject an employee to an adverse employment action because of cannabis use without a policy in place may be subject to a lawsuit brought by an employee seeking reinstatement, back wages and reasonable attorney’s fees and costs.
So, before there is a workplace issue that needs to be addressed, a business should update its human resources policies and procedures. What is and what is not acceptable in your workplace regarding cannabis legalization? How do your policies fit with other work disability, drug, and alcohol policies? Any conflicts?
It all rests on the terms of the written policy.
Jessica A. Slippen is an attorney with Stratford-based Mitchell and Sheahan. She handles employment litigation matters before state and federal courts and administrative agencies and can be reached at 203-873-0240 or [email protected]