Effective today, recreational marijuana is legal for personal use in Connecticut. Your employees might think that this means they have free reign to use marijuana in the workplace.  They would be wrong.  In fact, the new law provides employers with significant authority to prohibit marijuana use in the workplace and punish marijuana use outside of the workplace. The new law also imposes additional restrictions on smoking and vaping (both tobacco and cannabis) at work.

Adding to the confusion that employers and employees alike will have to sort out is the fact that the effective date of the law regarding workplace regulation of cannabis is not until July 1, 2022.  That means employers, for now, can follow the pre-legalization rules.  For example, prior to July 1, 2022, employers can prohibit any cannabis use by employees (unless for certified medical reasons) and can test for it as well.  As outlined below, some slightly different rules will apply after July 1, 2022, although the practical effect is that employers will still have the ability to regulate recreational use of cannabis.  That said, the rules regulating smoking in the workplace go into effect on October 1, 2021, so employers should not put off reviewing their policies and procedures now.

This post will explain the rules that go into effect, and what you can do now to maintain the integrity of your workplace now.

Cannabis Use And The Workplace

First off, the law creates two sets of rules depending on whether the employer or a particular job/position in question is considered “exempt” from regulation.  “Exempt Employers” include those whose primary activity is mining, utilities, construction, manufacturing, transportation or delivery, educational services (schools), healthcare or social services, justice, public order and safety activities, national security and international affairs. All positions at Exempt Employers are excluded from coverage.  “Exempt Positions” include firefighters, EMTs, police officers, DOC employees in direct contact with inmates, those requiring operation of a motor vehicle for which federal or state law requires screening tests, and positions that require a CDL, to name a few.

Effective July 1, 2022:

• ALL employers can prohibit possession or use of recreational marijuana in the workplace. Employers do not have to make accommodations for use of recreational marijuana, but must still allow possession of medical marijuana by a qualifying patient.
• ALL employers can take disciplinary action against employees for possession, use, and consumption of recreational marijuana outside the workplace, so long as the employer has a policy that is in writing and made available to employees.
• Non-exempt employers/positions: Employers cannot discharge or take any adverse action against an employee or prospective employee solely because the employee used marijuana outside the workplace before employment.
• Non-exempt employers/employees: Employers can take adverse action against an employee for a positive marijuana test if such test was conducted based on “reasonable suspicion” of intoxication, as part of “fitness for duty” requirements, or on a random basis if the employer is required to do so by law or has a policy on such testing.
• Exempt employers (or exempt positions at non-exempt employers): Employers can refuse to hire or take disciplinary action for possession, use or consumption inside or outside of the workplace, including before employment, or solely on the basis of a positive marijuana test, with or without a policy in place.

At the end of the day, employers can still take disciplinary action related to most recreational marijuana use.  The key difference for exempt employers and exempt positions is that exempt employers do not need to have a written policy in place.

Regardless, we think it is a good practice for all employers to have a clear policy detailing the rules for employees to follow when it comes to drug, alcohol and tobacco use.

Clean Air Act Provisions

The legal cannabis law also contains heightened restrictions on smoking and vaping in the workplace that are buried among some of the more flashy provisions of the law.  These restrictions go into effect on October 1, 2021. Here are the highlights:

• Employers must ban smoking and e-cigarette use of tobacco and cannabis in any area of the workplace. (Previously, employers with five or more employees could designate a smoking room for smoking tobacco.)
• Employers must ban smoking both inside the workplace and outside within 25 feet of a doorway, operable window or air intake vent. This will affect where employees can take smoke breaks.
• Employers may ban smoking entirely on the property. Previously, employers could just ban it in their “facility.”
• There are a few exceptions that will apply including those facilities that are exempted under the Clean Indoor Air Act.

Employer Takeaways

Given the confusion about what the law allows and when it goes into effect, here is what employers can do today to set clear boundaries for employees:

• Communicate with your employees about when the law goes into effect and what that means
• Remind employees of any existing policies or rules against the use of drugs or alcohol in the workplace — including recreational marijuana — and the disciplinary consequences of violating the policy or rule
• Draft or update your policy to account for the legalization of recreational marijuana ASAP, including how you will handle (i) use of recreational marijuana in the physical workplace, (ii) use of recreational marijuana in the remote workplace, (iii) use of recreational marijuana outside of the workplace, and (iv) drug testing employees.

We hope that this post helps you untangle some of the confusing provisions of the new marijuana law as they relate to employers.  We will continue to analyze this law and publish updates as more information becomes available.