The General Assembly over the weekend passed a comprehensive bill that permits individuals to use marijuana for palliative purposes. The bill is expected to be signed by the Governor this month.
Besides just permitting individuals to use marijuana, it has several important provisions that will impact employers in Connecticut. Unfortunately, as the history of medical marijuana bills in other states has shown, there are still many unanswered questions left. Employers will be wise to seek legal counsel to understand the full implications of this bill in their specific industry and workplace.
(I previously discussed the impact of last year’s bill to decriminalize marijuana here.)
Under the new law (which you can download here), employers are prohibited from refusing to hire, firing, penalizing or threatening an employee “solely on the basis…as a qualifying patient or primary caregiver.” The law does have an important caveat; the employer can act if “required by federal law or required to obtain federal funding.” Thus, if there are, for example, commercial driving laws in your industry that restrict the use of marijuana, it appears that law will trump state law.
The law does not, however, clarify what it means to be “solely” on the basis of. Does that mean an employer can consider it but just combine it with other reasons? Does that mean if an employee brings in marijuana to work (but doesn’t use it) that would be sufficient grounds for termination?
Notably, the law also states that marijuana use is not allowed “(A) in a motor bus or a school bus or in any other moving vehicle, (B) in the workplace, (C) on any school grounds or any public or private school, dormitory, college or university property, (D) in any public place, or (E) in the presence of a person under the age of eighteen.”
Sounds good, right? Except what does “in the workplace” mean? Any place where the employee works? In the home office? What happens if the employee is an outside salesman? Can an employer still implement a “zero-tolerance” workplace policy?
Before an employer frets too much, the bill does add that the bill does not “restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.”
So, if an employer still has a policy (much like it does for alcohol) that restricts the use of these substances during work hours, that appears to be safe.
But still, questions remain. What if the employee requests a reasonable accommodation under state law to smoke marijuana during work hours, arguing that it will allow her to do her job? There is no doubt that, despite some of the language in the statute, that some will seek to have this issue litigated.
For more background on how other states have dealt with this issue, see these posts from Michigan, Washington, Pennsylvania and Delaware.
Employers that have had multi-state offices have had to address this for some time, but for all other employers, the new law is bound to cause a late night or two thinking about this. You may want to break out some munchies: We’re in for a ride.