The news this week that Connecticut has given its approval to four medical marijuana growers in Simsbury, West Haven, Portland, and Watertown, inches the state that much closer to full implementation of the medical marijuana law that was passed in 2012.
The state also reported that over 1600 individuals in Connecticut have been certified by the state to receive medical marijuana. That number is expected to grow once production begins in earnest.
Add to that news, the recent legalization of marijuana in Colorado and Washington and employers now have a whole new area of law to familiarize themselves with.
It would be easy to just write some puns on the matter (and who can resist it in the headline) but it’s not such a laughing matter to employers struggling to figure out what the rules of the road are.
I previously talked about what is and is not covered in Connecticut’s medical marijuana laws in a post back in 2012. At the time, I noted that there were five important takeaways:
- Employers may not refuse to hire a person or discharge, penalize or threaten an employee based solely on such person’s or employee’s status as a qualifying patient or primary caregiver.
- Employers may discriminate if required by federal funding or contracting provisions.
- Employers MAY continue to prohibit the use of intoxicating substances, including marijuana, at work.
- Employers MAY continue to discipline employees for being under the influence of intoxicating substances at work.
- But employers MAY NOT presume that a drug test result that is positive for marijuana means that the employee used at work or was under the influence at work.
The Connecticut Law Tribune published an interesting column from my former colleagues this week talking about some hypothetical situations that may arise. As the column notes, a bit of a conundrum still exists for employers.
While it is clear under [state law] that an employer may terminate or discipline an employee who reports to work impaired on account of his/her medical marijuana use, the law does not address how employers are to treat employees … who use marijuana during non-work hours, but will inevitably fail routine drug tests administered pursuant to a drug-free workplace policy.
If the employer terminates [the employee] for violating its policy, it risks liability if she proves she was not under the influence at work. On the other hand, if it does not terminate …, the employer risks liability should [the employee] report to work under the influence and injure herself or others.
Another novel issue that is arising? Suppose your employee is on a business trip in Colorado. After a sales meeting, on the way back to his hotel, the employee legally purchases and then consumes some Rocky Mountain marijuana. Can you discipline the employee for engaging in a legal activity while on “company business”?
As long as we have disparate state laws on the subject, we’re not going to get clear cut answers. For employers, be sure to stay up to date on the developments and talk with your legal counsel about the implications for your business now that we are on the outskirts of implementation.