A no-brainer, right?
After all, even the Connecticut Supreme Court is stating that the “statutory, regulatory and decisional law of Connecticut evinces an explicit and well-defined public policy against the recreational use of marijuana, particularly in the workplace.”
So why is the result of today’s Connecticut Supreme Court decision (in State of Connecticut v. Connecticut Employees Union Independent) that a pot-smoking employee gets his job back?
Well, the answer is based on a few facts that I think tipped the decision of the court and that are important to understand about the case. (And for more background, the CT Mirror released a post today too.)
First off, the court was not reviewing the underlying decision to fire the employee. Rather, it was reviewing an arbitration decision that had reinstated the employee but with a number of sanctions and conditions, including imposing an unpaid suspension, a last-chance status, and random drug testing. As I’ve noted before, Connecticut courts will review public policy and a number of factors including whether the employee is “incorrigible”.
Put more simply, courts do not like reversing arbitration decisions, even if those decisions are flawed. (See Brady, Tom.)
And that leads to the next factor: here there was a 15 year, relatively low-level employee with a clean record. His union argued that he was “dealing with serious personal struggles” and believed that “smoking marijuana helped to alleviate stress and anxiety”. The court thought that the employee’s past history was worth consideration. And, it should be noted, the court’s decision was unanimous.
Third, I think the court was reviewing whether an employee who smoked pot COULD be terminated versus MUST be terminated. And on that issue — namely whether public policy dictated an employee be fired for smoking pot — the court said public policy wasn’t definitive. Rather, the court found that an array of responses may be appropriate.
So, what does this case mean? First off, it does NOT mean that private employers can’t fire an at-will employee for smoking pot. In fact, the above-language from the court suggests that such terminations are going to be upheld by the courts in most instances.
And, for public employers, it also does not mean that all terminations of drug-using employees are going to be invalid either. An arbitrator could find the employee’s termination justified in other instances based on the circumstances or the type of position that the employee held (such as a teacher or bus driver, one could imagine).
Rather, the decision means that arbitrators will have some breathing room in reviewing the facts of a situation and fashioning a solution that may be less than a termination in some instances.
For lawyers, the concurrence by Justice Espinosa is worth reviewing; she would have the court revisit its decision that set forth the standards for the court to review in such instances.