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January 18, 2016 Expert Corner

Medical marijuana law leaves open questions for employers

Megan Y. Carannante
Rachel L. Ginsburg

Mary Jane, a machine operator, is battling breast cancer. During a routine drug screening, she tests positive for marijuana. The company intends to terminate her because she violated its zero-tolerance, drug-free workplace policy.

When the company confronts Jane about the failed test, she responds that she is legally using medical marijuana for her chemotherapy-related pain and fatigue. She assures the company that she only smokes marijuana during non-work hours and has never been “high” at work. The company believes Jane, but is understandably concerned that the residual effects of her marijuana use may pose a safety risk to herself and others while she is on the job.

The question is: Can the company lawfully terminate Jane for her marijuana use?

Connecticut is one of 10 states and the District of Columbia that provides protections to employees who are medical-marijuana users or authorized caregivers for users. Specifically, Connecticut law prohibits employers from refusing to hire, terminate, penalize or otherwise discriminate against an employee solely on the basis of his/her status as a medical marijuana user or caregiver. Employers, however, can still insist that employees refrain from using marijuana during work hours and can discipline any employee who is “under the influence” at work.

In light of this law, Jane's employer is faced with a catch-22. If the company terminates Jane for violating its drug-free workplace policy, it risks liability if Jane can prove she was not “under the influence” at work. On the other hand, if it does not terminate Jane, the company risks liability should she report to work “under the influence” and injure herself or others. The issue is complicated by the fact that “under the influence” is an entirely subjective concept and unlike a breathalyzer test for alcohol, a drug test is not always a reliable indicator of whether or not an employee is “high” at work because traces of marijuana remain in an individual's system long after its effects disappear.

When terminating employees, companies are typically guided by statutes, regulations and court decisions. In the brave new world of legalized marijuana in Connecticut, the statutes are unclear, the regulations are silent, and the matter has not yet reached the courts.

For example, in a case now pending in Massachusetts, Barbuto v. Advantage Sales and Marketing LLC, a marketing employee using medical marijuana for her Crohn's disease was terminated two days into her employment after failing a pre-employment drug test.

The Barbuto lawsuit is the third of its kind to challenge the propriety of an employee termination based on lawful medical marijuana use, the other two being in Maine and Colorado. The lawsuit in Maine settled before the court could issue a ruling. In Colorado, in the case of Coats v. Dish Network LLC, the Colorado Supreme Court ruled that Dish Network was within its rights to terminate Coats, a quadriplegic using medical marijuana for pain who failed a drug test, because marijuana remains an illicit Schedule I drug under the federal Controlled Substances Act.

Connecticut employers should not rely on Coats, however, because Colorado, unlike Connecticut, does not have a statute offering express protections to employees who lawfully use or administer marijuana.

Until such guidance exists, Connecticut companies are wise to educate management about the medical marijuana anti-discrimination law, revise their handbooks and policies accordingly, and train management in recognizing signs of impairment from marijuana use.

Megan Y. Carannante and Rachel L. Ginsburg are attorneys with Pullman & Comley LLC and have recently conducted seminars and webinars regarding the legal aspects of marijuana use in the workplace.

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