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.

Last week, the General Assembly approved of reduced penalties for people caught with relatively small amounts of marijuana in their possession.  Notice the use in the title of the word “decriminalize”; that is a different term than “legalize”.

Employers Can Still Ban Usage

This raises the obvious question: Can employers in Connecticut still regulate and ban employee usage of marijuana? The answer appears to be plainly yes.

First, consider that alcohol is, in essence, a legalized drug.  Employers still have the right to ban employees from using it on the job. That suggests that employers can still do the same with marijuana (which still isn’t legal).

Also remember that marijuana usage is still prohibited under federal law and employment laws like the ADA do not require an employer to accommodate or accept current drug usage by employees.

And also still, nothing in the new law changes existing law. In other words, the bill does not, for example, say that employers are prohibited from considering marijuana usage in making employment decisions.

But a more important indicator are recent court cases from states that not only have decriminalized marijuana usage, but legalized it for medical purposes.  In those states, employers are still allowed to regulate drug usage by employees.

As reported in a recent WSJ Law Blog post:

It turns out that smoking weed legally for medical purposes can still be illegal.

Washington state’s Supreme Court upheld a Colorado company’s decision to fire a woman for failing a required drug test due to pot use, even though she had a valid medical marijuana prescription…..

The employee – who sued under the pseudonym Jane Roe – worked for TeleTech Customer Care and was fired in October of 2006 after a week of training. TeleTech, which performs the customer service for Sprint, had a contract with the telecommunications company that required drug testing of all employees, with no exception for medical marijuana use.

The 8-1 decision issued Thursday declared that the state medical marijuana law did not necessarily require employers to accommodate use of the drug outside the work environment….

That’s not to say that all states treat this equally. In fact, Delaware recently passed a law that prohibits employers from discriminating against users of medical marijuana, as reported by the Delaware Employment Law Blog.

What’s the Takeaway for Employers?

Don’t be distracted by recent headlines. Employers in Connecticut can still regulate drug usage by employees.