“If more people were stoned there would be less violence in the world.” – Tommy Chong
Connecticut recently legalized Marijuana on a state level. What does this mean for employers? This depends on the field of work, positions within field, and company policy. Knowing current laws is helpful, because there are a few changes that will be implemented starting July of 2022.
There are three forms of drug testing with different rules that apply to each form. Connecticut laws are regulated by Urinalysis tests. In order to drug test your employees a policy must be clearly written and distributed. What types of drug testing exist in the work place?
There are three forms of drug testing with different rules that apply to each form. Connecticut laws are regulated by Urinalysis tests. In order to drug test your employees a policy must be clearly written and distributed. What types of drug testing exist in the work place?
Pre-Employment Drug Testing
Prospective employees must be informed at the time of application if pre-employment drug testing will be required. The prospective employee must not begin employment before the employer requests the test, even if it is their first day on the job for orientation. If the test comes back positive, the prospective employee must be given a copy of the positive test results, and must have a second test for confirmation.
Reasonable Suspicion Testing
Reasonable suspicion testing only applies to employees that are currently under the influence. When an employee is suspected of being under the influence, it is usually noticed first by co-workers. Co-workers should go to their direct supervisor or manager, and provide a detailed explanation of what was observed. The supervisor or manager should observe the employee first hand from afar, as well as up close. Another member of management should also observe the suspected employee’s behavior. The employee should be removed from any area where their impairment could impact the safety of themselves or others. Management should clearly document their observations. A common list of symptoms includes the following:
- Eyes (Dilated, Constricted, watery, or involuntary eye movement)
- Odors (Smell of alcohol marijuana)
- Speech (Slurred, slow, distracted mid-thought, inability to communicate thoughts)
- Movements (Unsteady, fidgety, dizzy)
- Face (flushed, sweating, confused or blank look)
- Emotions (Argumentative, agitated, irritable, drowsy)
- Inactions (Sleeping, Unconscious, no reaction to question)
When management agrees with observations, suspicion testing is warranted, they should have meeting with employee and Human Resources. This is when the request for testing should be addressed, and having the employee’s written consent to agree to testing is beneficial. Employers should arrange transportation for any employee suspected of being under the influence to the testing site. The actions for the employee refusing to take test, will depend on the written policy. An employer should have an employee return to work as soon as possible, and pay for any shifts missed when the test returns negative. Positive tests will be based upon policy as well.
Random Testing
Random testing is governed by federal law. Random testing usually applies to federal positions, as well as high risk or designated safety-Sensitive positions that require judgement.
Current laws prohibit an employer from making disciplinary decisions and refusing to hire an applicant based upon their status of being a medical marijuana card holder.
There are many exceptions written within the new law, these are in the forms of Field (based on NAICS Codes), and position:
Field Exemptions
- Mining
- Utilities
- Construction
- Manufacturing
- Transportation and Delivery Services
- Educational Services
- Healthcare and Social Services
- Justice, Public Order, and Safety
- National Security, International Affairs
Position Exemptions
- Firefighter
- EMT
- Police and Correctional Positions
- Drivers, especially within Department of transportation, FAA, and Coast Guard
- Positions requiring department of defense or department of energy national security clearance.
- Positions with employment contract or union that conflicts with the new law.
- Positions funded by federal grants
- Positions caring for children, medical patients, or vulnerable persons.
- Positions within non-profits whose primary purpose is to discourage drug use.
- Positions subject to conflicting federal law.
- Positions that have the potential to adversely impact the health or safety of the public.
- Any employee that works for an exempt employer.
Employers are still entitled to enforce a drug and alcohol-free workplace under the new law. They can still prohibit possessing, using or consuming cannabis while working or on work premise. Employers can implement a policy that prohibits the possession and use of recreational cannabis, but it must be in writing and announced to current and prospective employees, at time of offer. Employers may discipline employees based on reasonable suspicion of cannabis use at work, or symptoms of impairment that impact their performance. If an employer wants to prohibit the use of cannabis outside of work, it must be written within their policy.
Employers that do not have a drug policy cannot discharge an employee based on their use of marijuana outside of the workplace, nor their based on their history of use outside of the workplace.
Employers cannot penalize a current or perspective employee based on a drug test that’s positive solely for THC, unless:
- It would risk federal contact or funding
- Reasonable suspicion of use while at work
- Employee shows symptoms of impairment that impacts performance
- It was part of a random test
Employees that feel an employer did not follow proper procedure must bring their civil action to court within 90 days of an employer’s conduct. If court sides with employee, they may be awarded with reinstatement, back wages, and attorney fees. There is no course of action when an employer has shown good faith belief that an employee used or possessed cannabis at work or was unfit for duty. Also, if a third party suffered due to impairment of suspected influenced employee.
Any employers that have concerns for new law changes, should hire a consultant or attorney to write a drug policy on behalf their company. Employers with drug test policy’s already in place, may consider updating verbiage from “illegal drugs” to “intoxicating substances” to include both alcohol and marijuana.
