This week, my colleague Sarah Westby and I published a detailed look at the new legal cannabis law in Connecticut and what it means for employers. I’m not going to duplicate the post here but strongly encourage you to read it.
One thing that didn’t make it in the post was strange provision found in one of the definition sections.
Before I explain it, let me set the table:
As I have said time and again, employees and independent contractors are two different animals. Think black and white. People who work are either one or the other. There are tests to determine this as well including the ABC test. People who work are not an employee AND an independent contractor.
Which makes this next provision just bizarre.
As Sarah and I cover, new workplace rules go into effect next year for “employers” and “employees”. Employers are restricted from taking some actions against employees for cannabis use without a policy and other conditions being met.
You might think that the General Assembly would simply borrow the definition of an “employee” from another section. But you would be wrong.
Instead, the legislature has created a new definition for an “employee” specifically for this law covering cannabis regulation in the workplace.
Section 97 (1) states: “‘Employee’ means any individual employed or permitted to work by an employer, or an independent contractor.“
Huh? An independent contractor (which is, by the way, not defined!) is an “employee” too?
Beyond just sheer confusion, this definition is bound to cause issues. For example, read literally, one could argue that an employer should be barred from taking an “adverse action” against an independent contractor just because that contractor uses cannabis products (absent a policy). Does that mean that contracts with such independent contractors are void on this issue?
The answers, of course, to these questions are unknown. We are in uncharted waters here. But this is an example of legislation that could’ve used a bit more vetting. And until (or unless) the legislature cleans up this bill, employers have a lot more to worry about than just cannabis in the workplace.
For now, employees = independent contractors.