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August 9, 2021 Experts Corner

Best practices for employers to address recreational cannabis

By Megan Y. Carannante and Zachary T. Zeid

The law legalizing recreational use of cannabis in Connecticut imposes new restrictions on employers while offering protections for employees who indulge.

For employers seeking to prohibit off-duty cannabis use, a strong written workplace policy is a necessity.

Employers may continue to prohibit cannabis use at work

First and foremost, concerned employers need not panic — the new cannabis law is clear that employers may continue to maintain drug-free workplaces and may still prohibit employees from using or being under the influence of cannabis at work or during working time.

New employee protections for off-duty and non-work use

The law also imposes new employment protections for certain individuals who use recreational cannabis off the clock, including current and prospective employees.

However, due to heightened safety concerns surrounding cannabis use, certain organizations are exempt from these new protections, including employers in the following industries: mining, utilities, construction, manufacturing, transportation or delivery, educational services, health care or social services, justice, public order or safety activities, national security and international affairs.

Certain safety-sensitive positions are also exempt.

Beginning July 1, 2022, non-exempt employers are prohibited from taking adverse action against a current employee solely on the basis of a positive test or off-duty cannabis use unless such action is taken pursuant to a written drug-free workplace policy.

The policy must be made available to each employee prior to the employer taking adverse action, which includes, but is not limited to, written or verbal discipline, demotion and termination of employment.

In the pre-employment context, non-exempt employers may no longer refuse to hire a prospective candidate based solely on a positive cannabis test unless it would result in the employer violating a federal contract or losing federal funding.

Drafting a workplace policy

It is critical for employers to have strong workplace policies addressing cannabis use.

Organizations with existing policies addressing drug use should first determine their exemption status and stance on employee cannabis use, then review the existing policies and hiring procedures to determine whether any changes should be made.

If there is no policy in place, the organization should act quickly to create one. A comprehensive policy should do the following:

Explain why the employer is implementing a drug-free workplace policy and its commitment to establishing a healthy, safe and productive workplace.

Describe the rules and expectations regarding drug and alcohol use and testing, including at work, on-call, and off-duty. Be specific in describing what is prohibited, including where and when, and ensure the policy also addresses recreational and medical cannabis, illicit drugs, prescription and over-the-counter medications and alcohol.

Provide guidance on signs of impairment caused by drug or alcohol use for managers and employees.

Outline the types of drug and alcohol testing the employer may require and the corresponding testing procedures.

Provide information about assistance for employees struggling with substance abuse.

Identify the appropriate person for employees to contact with questions about the policy.

Describe the consequences for policy violations, including potential discipline that may be imposed by employers who prohibit off-duty cannabis use.

Communicating the policy

To minimize prospective liability, employers should be proactive now rather than waiting until a cannabis-related workplace issue arises.

Regardless of exempt or non-exempt status, employers should act quickly to inform employees about the new law and how it impacts the workplace before the new employee protections take effect.

Employers should communicate the organization’s position on cannabis use and reference any applicable policies.

Employers should also provide training to managers about these changes, including new or revised hiring and testing procedures, recognizing signs of impairment at work and employee discipline.

Megan Y. Carannante and Zachary T. Zeid are labor and employment attorneys at the law firm Pullman & Comley LLC.

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