pottYou might think that smoking pot on the job as a state employee would be justifiable grounds to get you fired.

A no-brainer, right?

(Let’s save a discussion for eating brownies and swearing at your cat for another blog post.)

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.

So yesterday, I made a convincing case that employees who smoke outside the workplace can’t be treated differently than your non-smokers. 

But what about your health insurance plans? Doesn’t the state law prohibit your plan from imposing higher premium costs on those smokers?

Well on first glance it appears yes.  The state law would seem to apply.

But, dig deeper (and without getting too technical) and you’ll understand that there is a federal law — ERISA — that trumps that state law when it comes to insurance plans. 

Indeed, back in 2006, the Office of Legislative Research (one of the underappreciated government offices) wrote a report that said exactly that:

You asked if Connecticut law prohibits insurers or employers from factoring in whether a person smokes when determining insurance premiums or employee contributions for health care benefits. …

Connecticut law prohibits employers from discriminating against any individual who smokes outside the workplace with respect to compensation, terms, conditions, or privileges of employment (CGS § 31-40s). The Connecticut Department of Labor (DOL) interprets this law as not prohibiting an employer from having smokers contribute more toward health benefits than non-smokers due to preemption by the federal Employee Retirement Income Security Act (ERISA). To our knowledge, this issue has not been litigated in a Connecticut court. …

Since that time, the question remains undecided, but there is little reason to doubt the conclusion. Indeed, there’s much more to this area than a simple blog post can provide.  But employers who believe in healthy workplaces and want to keep their insurance premiums down do have a small arrow in their quiver to make it happen.

When I was away last week, one of the headlines from my alma mater caught my attention.  The University of Pennsylvania Health System announced that effective July 1st, they will refuse to hire anyone who smokes or uses tobacco.

Smokers’ Rights Continue

No doubt some of you are either lauding this step, or shaking your head in disgust.

Could an employer in Connecticut consider taking such a step? Surprisingly no.

For of all the steps taken to promote healthy workplaces, Connecticut still prohibits employers from making decisions based on an employee or applicant’s outside smoking activities. 

Conn. Gen. Stat. Sec. 31-40s states:

No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

The only notable exception to this broad restriction is that the limits do not apply to firefighters and police officers, for the most part.

Note that the restrictions also apply to compensation or other “privileges” of employment.  Thus, employers in Connecticut that want to get on the “wellness” bandwagon and start restricting employees from smoking outside the workplace or provide rewards to employees that do not smoke, ought to think twice and conform any programs with the legal requirements on the state.

And don’t look for any changes in the immediate horizon. A quick review of the Labor & Public Employee Committee book shows nary a reference to changing this law and no proposed bills on the subject have been introduced this year. 

 

 

Let’s say you’re an employer in Connecticut.  And you want to keep your health insurance costs down and promote a “healthy workplace”.  After all, its a new year and a new year is built for resolutions like quitting smoking.

Beware of Smokers Rights Laws

No less than The New York Times did an article a few weeks ago about how some smokers are being subjected to health insurance penalties in their workplaces:

More and more employers are demanding that workers who smoke, are overweight or have high cholesterol shoulder a greater share of their health care costs, a shift toward penalizing employees with unhealthy lifestyles rather than rewarding good habits.

Policies that impose financial penalties on employees have doubled in the last two years to 19 percent of 248 major American employers recently surveyed. Next year, Towers Watson, the benefits consultant that conducted the survey, said the practice — among employers with at least 1,000 workers — was expected to double again.

But such an article overlooks a more basic question: Can you, as an employer, mandate that employees not smoke outside the workplace?

Well, longtime readers of the blog may recall a post I did back in 2008 that answered that question with a pretty firm “no”.

In fact, in Connecticut, Conn. Gen. Stat. 31-40s is fairly clear about smokers’ “rights” and that employers or agents of the employer cannot make “no smoking” a condition of employment.  Specifically, the law states:

No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

The only notable exception to this broad restriction is that the limits do not apply to firefighters and police officers, for the most part.  (For more on smoking laws, see this page from the Connecticut Law Library.)

With a new legislative session starting in a few weeks, will any Connecticut legislator take this up as an issue?

If the past is any indication, then the answer is no.  Just last year, a Senate bill would have outlawed all smoking in the workplace. (Currently there are carveouts for employers with less than 5 employees.)  But even that bill went down in, ahem, flames.

A cursory search for other like-minded bills turned up empty.  But perhaps with the attention that this issue has been receiving in the press, someone will take it up.

In the meantime, employers in Connecticut should be wary about following national “trends”. Until the law changes in Connecticut, employers are limited in their options in dealing with workers who smoke.

This week, word came down that several Hartford-area companies were implementing a ban on smoking anywhere on company premises. This means outside areas on the campuses of these businesses, and the parking lots as well.  Previously, employees could smoke in designated areas outside various buildings. 

Yesterday, Bristol started considering implementing a ban on smoking on public streets as well. The Hartford Courant reported on the story here this morning (which includes a short quote from me at the end of the article.  courtesy morgue file "smoking" NOT public domain

Clearly, the trend in Connecticut is to expand the existing restrictions on smoking to areas that have not previously been restricted.

But what is the law on smoking in the workplace?

Back in July, I covered much of this and discussed the fact that while an employer could ban smoking on company premises, it could not prohibit smoking by an employee "outside the course of employment".  For practical purposes, that means that the truck driver can’t smoke while working, but is free to do so at home.

This so-called "smoker’s rights" law is spelled out in  Conn. Gen. Stat. 31-40s and specifies that employers are prohibited from banning smoking outside work hours (though banning smoking on company premises IS allowed, even if the employee isn’t working.) Specifically, the law states:

No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect  to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

The only notable exception to this broad restriction is that the limits do not apply to firefighters and police officers, for the most part.   Employers, however, have broad authority to ban smoking at the workplaces and on their premises entirely, which is the step that several area businesses have now implemented under Conn. Gen. Stat. 31-40q. 

As more and more employers are devising ways to ensure that their employees are healthy, it would be wise for the legislature to review this law again. Perhaps the scope is just right, perhaps not. But until this rule is reviewed and eliminated, employers and local communities may be restricted in what further steps they can take to implement wellness programs and other restrictions.

There’s been a lot of talk of late of a "trend" beginning where employers are taking stock of employees health habits, particularly smoking.  Some employers are even considering a "smoke screen", per this story and this followup as well.   Some other background on employers and smoking policies can be found here, and here.

While employers have the statutory right to control and limit smoking in the workplace, Connecticut employers should be mindful of a state law that restricts an employer’s ability to regulate smoking outside the workplace.

In fact, in Connecticut,  Conn. Gen. Stat. 31-40s is fairly clear about smokers’ "rights" and that employers or agents of the employer cannot make no smoking a condition of employment.  Specifically, the law states:

No employer or agent of any employer shall require, as a condition of employment, that any employee or prospective employee refrain from smoking or using tobacco products outside the course of his employment, or otherwise discriminate against any individual with respect  to compensation, terms, conditions or privileges of employment for smoking or using tobacco products outside the course of his employment, provided any nonprofit organization or corporation whose primary purpose is to discourage use of tobacco products by the general public shall be exempt from the provisions of this section.

The only notable exception to this broad restriction is that the limits do not apply to firefighters and police officers, for the most part. 

Note that the restrictions also apply to compensation or other "privileges" of employment.  Thus,  employers in Connecticut that want to get on the "wellness" bandwagon and start restricting employees from smoking outside the workplace or provide rewards to employees that do not smoke, ought to think twice and conform any programs with the legal requirements on the state.

As always, getting legal advice to specific issues like regulating smoking outside the workplace is the best policy to avoid liability in the future.