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Connecticut Legalizes Recreational Cannabis

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On Tuesday, June 22, 2021, Connecticut Governor Ned Lamont sign Senate Bill 1201 (SB 1201 or the Bill), legalizing recreational cannabis in the state. As of July 1, 2021, possession of up to 1.5 ounces of recreational cannabis will be permitted for residents age 21 and older. Although the Bill outlines a regulatory framework for sales, it is likely that sales will not begin until 2022 at the earliest. Portions of the Bill pertaining to employers are effective on July 1, 2022.

General Workplace Guidance

SB 1201 states that employers with five or more employees can prohibit smoking, electronic nicotine/cannabis delivery systems, and vapor products in any area of a business facility that they control.

Cannabis Possession and Accommodation in the Workplace

Employers are not required to accommodate or permit any employee to perform his/her duties while under the influence of cannabis. Additionally, employers are not required to accommodate or permit an employee possessing, using, or otherwise consuming cannabis while performing work duties or on the employer’s premises. This excludes the possession of palliative cannabis by a qualified medical cannabis patient. Employers can have policies prohibiting the general possession, use, or consumption of cannabis by employees. Such policies do not apply to the possession of palliative cannabis by a qualified medical cannabis patient or as outlined in the medical cannabis law. An employer’s workplace policy must be in written form and made available to each employee prior to the enactment of the policy. Employers must make their policies available to each prospective employee at the time an offer of conditional employment is made.

Adverse Employment Actions and Policy

Employers cannot discharge or take any adverse action against an employee with respect to compensation, terms, conditions, or privileges of employment because the employee does or does not use cannabis products outside of the workplace, unless such action is taken pursuant to a legally established workplace policy. Employers cannot discharge or take adverse employment action against an employee or applicant because said individual had or had not used cannabis products outside of the workplace before such individual was employed by the employer, unless failing to do so would put the employer in violation of a federal contract or cause them to lose federal funding. This does not apply to exempted employers, exempted employees, or any employee who holds or is applying for an exempted position.

Employers are still obligated to maintain a drug- and alcohol-free workplace. Employers are not limited in their ability to take appropriate employment action upon reasonable suspicion of an employee’s use of cannabis while engaged in the performance of their work responsibilities at the workplace or while on call.

Additionally, employers are not limited in their ability to take appropriate employment action upon determining that an employee manifests specific, articulable symptoms of drug impairment that decrease or lessen the individual’s performance of the duties or tasks of their job position while working at the workplace or while on call. These symptoms include, but are not limited to:

  • Speech;
  • Physical dexterity;
  • Agility;
  • Coordination;
  • Demeanor;
  • Irrational or unusual behavior;
  • Negligence or carelessness in operating equipment or machinery;
  • Disregard for the safety of the employee or others;
  • Involvement in any accident that results in serious damage to equipment or property;
  • Disruption of a production or manufacturing process; or
  • Carelessness that results in any injury to the employee or others.

Drug Testing and SB 1201

Employers are not limited or prevented in their ability to subject employees and/or applicants to drug testing or fitness-for-duty evaluations. Employers can take adverse action that includes, but is not limited to, discipline, termination of a position, or rescinding a conditional job offer pursuant to a policy established according to SB 1201.

Any drug test of prospective or existing employees (excluding those that are in or applying to exempted positions) that yields a positive result solely for 11-nor-9-carboxy-delta-9- terahydrocannabinol shall not be the sole basis for an employer’s refusal to employ, to continue to employ, or penalize an employee/applicant unless:

  • Failing to do so would cause the employer to violate a federal contract or cause it to lose federal funding;
  • The employer “reasonably suspects” that an employee is using cannabis while engaged in the performance of their work responsibilities;
  • The employee manifests specific, articulable symptoms of drug impairment while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position; or
  • Except as provided in the medical cannabis law, the drug test was pursuant to a random policy pursuant to section 98 subsection b subdivision 1 of the Bill or was of an applicant with a conditional job offer where the employer has established a policy that a positive drug test for 11-nor-9-carboxy-delta-9-tetrahydrocannabinol may result in adverse employment action.

The Bill does not apply to drug testing, conditions of employment, or conditions for hiring applicants required pursuant to:

  • Any DOT regulation if such regulation requires applicant testing or accordance with 49 CFR Part 40;
  • Any state agency regulations that adopt federal regulations;
  • Any contract entered into between the federal government and an employer that requires drug testing of prospective employees as a condition of receiving the contract;
  • Any grant of financial assistance from the federal government that requires applicant drug testing as a condition of receiving the grant;
  • Any federal law or state statute, regulation, or order that requires applicant drug testing for safety or security purposes; or
  • Any applicant whose prospective employer is party to a valid collective bargaining agreement that specifically addresses drug testing, conditions of hiring, or conditions of continued employment of such applicant.

Which Employers are Exempt?

Exempted employers include those whose primary activities are the following:

  • Mining;
  • Utilities;
  • Construction;
  • Manufacturing;
  • Transportation or delivery;
  • Educational services;
  • Health care or social services;
  • Justice, public order, and safety activities; or
  • National security and international affairs.

Information on which employers in the above industries qualify as exempted employers can be found in section 97 of SB 1201.

What Qualifies as an Exempted Position?

Exempted positions include:

  • Firefighters;
  • Emergency medical technicians;
  • Police or peace officers in a position with law enforcement or investigative function at a state or local agency or in a position with the Department of Correction involving direct contact with inmates;
  • Positions requiring the operation of a motor vehicle for which federal and/or state law requires the employee to submit to screening tests, such as a position requiring a CDL or any position subject to Part 40;
  • Positions requiring certification of completion of a course in construction safety and health approved by OSHA;
  • Positions requiring a federal DOD or DOE national security clearance; o Positions where the Bill is inconsistent or otherwise conflicts with the provisions of an employment contract or collective bargaining agreement;
  • Positions where the Bill would be inconsistent with or otherwise in conflict with federal law;
  • Positions funded in whole or in part by a federal grant;
  • Positions requiring certification of completion of a course in construction safety and health approved by OSHA;
  • Positions requiring the supervision or care of children, medical patients, or vulnerable persons; o Positions with the potential to adversely impact the health or safety of employees or members of the public, in the determination of the employer;
  • Positions at a nonprofit organization or corporation where the primary purpose is to discourage the use of cannabis products or any other drug by the general public; and
  • Positions with an exempt employer.
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