It’s been nearly two months since Connecticut’s “medical marijuana” law became effective. Yet many employers have been blissfully ignorant about what the law provides, perhaps because Connecticut does not yet have a home-grown supply of marijuana and the registration process is just beginning.
But because of the law’s appeal, I would expect the impact to increase substantially in 2013. Here are some key facts employers ought to know now:
What does the law provide?
- It is legal for certain individuals to possess limited quantities of marijuana for “palliative use.”
- “Palliative Use” refers to the alleviation of a “qualifying patient’s” symptoms of a “debilitating medical condition.”
- A “Qualifying Patient” is a Connecticut resident aged 18 or older who has been diagnosed by a physician as having a debilitating medical condition.
- A “Debilitating Medical Condition” includes cancer, glaucoma, AIDS or HIV-positive status, Parkinson’s disease, multiple sclerosis, certain spinal cord injuries, Crohn’s disease, PTSD, and any other medical condition approved by the Department of Consumer Protection pursuant to regulations to be adopted.
- Persons who may possess marijuana include qualifying patients and their “primary caregivers.”
How is the law being implemented and enforced?
- Qualifying patients and caregivers must register with the Department of Consumer Protection; physician certification will be required.
- The Department of Consumer Protection will also issue licenses to producers and to dispensaries (who must be licensed pharmacists).
- The Department of Consumer Protection will adopt regulations setting forth a protocol for determining what constitutes an adequate one-month supply – which is the maximum quantity a patient or caregiver may have on hand – of medical marijuana.
What is the impact for employers?
- 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.
What about the interaction with the ADA?
There has yet to be a Connecticut case on this, but a recent case from the Ninth Circuit suggests the answer to the question: “What do I do if my employee asks to be permitted to smoke medical pot at work as a reasonable accommodation for a disabling medical condition?” Because federal law still prohibits possession/use of marijuana, the court concluded that the ADA does not require this accommodation.
Will Connecticut law follow? We likely won’t have an answer to this question for some time.
What should employers consider doing now?
Employers should educate their staff as to the requirements of this new medical marijuana law and update policies, where necessary, to reflect the new legal requirements.
For more on the national marijuana legalization trend, see this article in today’s Employment Law Daily. And for more on the Connecticut law in general, see this article from the Connecticut Lawyer magazine (CBA membership required.)