The news this week that Connecticut has given its approval to four medical marijuana growers in Simsbury, West Haven, Portland, and Watertown, inches the state that much closer to full implementation of the medical marijuana law that was passed in 2012.

The state also reported that over 1600 individuals in Connecticut have been certified by the state to receive medical marijuana.  That number is expected to grow once production begins in earnest.

Add to that news, the recent legalization of marijuana in Colorado and Washington and employers now have a whole new area of law to familiarize themselves with.

It would be easy to just write some puns on the matter (and who can resist it in the headline) but it’s not such a laughing matter to employers struggling to figure out what the rules of the road are.

I previously talked about what is and is not covered in Connecticut’s medical marijuana laws in a post back in 2012.  At the time, I noted that there were five important takeaways:

  • 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.

 The Connecticut Law Tribune published an interesting column from my former colleagues this week talking about some hypothetical situations that may arise.  As the column notes, a bit of a conundrum still exists for employers.

While it is clear under [state law] that an employer may terminate or discipline an employee who reports to work impaired on account of his/her medical marijuana use, the law does not address how employers are to treat employees … who use marijuana during non-work hours, but will inevitably fail routine drug tests administered pursuant to a drug-free workplace policy.

If the employer terminates [the employee] for violating its policy, it risks liability if she proves she was not under the influence at work. On the other hand, if it does not terminate …, the employer risks liability should [the employee] report to work under the influence and injure herself or others.

Another novel issue that is arising? Suppose your employee is on a business trip in Colorado.  After a sales meeting, on the way back to his hotel, the employee legally purchases and then consumes some Rocky Mountain marijuana.  Can you discipline the employee for engaging in a legal activity while on “company business”?

As long as we have disparate state laws on the subject, we’re not going to get clear cut answers.  For employers, be sure to stay up to date on the developments and talk with your legal counsel about the implications for your business now that we are on the outskirts of implementation.

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.”

    Are Policies “Up In Smoke”?
  • “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?

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.)