Today, Massachusetts started retail sales of marijuana at two locations. Perhaps no location is closer to the population centers of Connecticut than Northampton — just 30 miles up the road from Enfield. It’s the first store east of the Mississippi River.
And lest you think that this is a Massachusetts-only affair, you need only watch the news reports from today to understand that there are plenty of Connecticut residents lining up seeking to avoid the restrictions in place in the Constitution State. And Governor-Elect Lamont has indicated he’s in favor of it.
This is going to cause headaches and some choices for employers in Connecticut.
Small amounts of marijuana have been de-criminalized in Connecticut but recreational use and possession is still prohibited. Moreover, employers are still free to discipline employees for recreational use on the job or even off.
But Connecticut has, for several years now, permitted medical marijuana users (who have registered with the state) to have some limited job protections. On-the-job marijuana use can still be prohibited as well as showing up under the influence.
The City of Waterbury recently announced a policy that testing positive for any amount of marijuana may subject employees to discipline. As a news article notes, that policy is likely to be challenged in arbitration and the courts.
So what can a private employer do when it drug tests employees in Connecticut and the results show up as “positive” for marijuana? Well, employers are going to first want to know if the employee is a medical marijuana patient, in which case further inquiries may be needed. Otherwise, the employer may have the ability to still discipline or terminate that employee’s employment.
Beyond the “Can We Fire…” question, the newer question is going to be “Should We Fire….”
With legal sales just miles away from employers here, the line as to what should be permitted or not gets, if you permit the pun, hazier and hazier. No doubt, some employers are going to try to draw lines in the sand and say that any drug use is not permitted — particularly if there are additional legal obligations that they need to follow. But some others may have a more permissive attitude and treat marijuana use as they do alcohol use — it’s fine so long as it doesn’t impact work and so long as it isn’t done at work.
The start of retail sales in Massachusetts is not the end of the story here; Connecticut may very well start to reconsider its own laws now that one New England state has taken the plunge. Regardless, employers should continue to talk with their counsel to navigate this ever-changing area of law.