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September 26, 2018

New pot laws cloud employer drug policies

PHOTO | Contributed Kebra Smith-Bolden, owner of CannaHealth, speaks at a panel on marijuana and employment with George Howe of Gregory & Howe.

Employers beware: Rapidly changing rules and case law around medical marijuana use are challenging established disciplinary and hiring practices.

Even in jobs with a safety component, a positive drug test for marijuana doesn’t necessarily mean an employee can be terminated or a job offer rescinded without legal repercussions, said Meredith Diette, an attorney representing employers at Berchem Moses PC of Milford.

“Don’t fire people because they come back with a positive drug test. … Call your lawyer first,” Diette said.

Despite federal rules on drug testing, Connecticut judges are siding with employees with medical marijuana cards, Diette said. A district court judge ruled on Sept. 8 that an employer wrongly rescinded a job offer to a physical therapist who tested positive for marijuana. The candidate had a medical marijuana card and disclosed her marijuana use to the prospective employer.

Even employees who show clear signs of impairment on the job may be protected by state law.

“You don’t know when they used cannabis,” Diette said. “It just keeps getting more and more blurred.”

Marijuana and its effect on employment policies was discussed as part of a recent panel at Gateway Community College sponsored by the Greater New Haven Chamber of Commerce.

The issue is a growing concern: Last month eight new ailments were added to the list of conditions eligible for the state’s medical marijuana program, which has already certified nearly 28,000 individual patients.

Employers need to get the facts on Connecticut’s medical marijuana program, said Kebra Smith-Bolden, owner of CannaHealth, a New Haven wellness practice specializing in the certification process. Smith-Bolden said that patients suffering from post-traumatic stress make up a significant proportion of her practice.

Patients and employers benefit from knowing the science behind how the drug works and best practices to avoid being “under the influence” at work, Smith-Bolden said. Properly used, marijuana has fewer negative effects on the job than many other prescription drugs and may in fact improve performance for some with anxiety and other conditions, she added.

Measuring “impairment” on the job is not an exact science, said George Howe of Gregory & Howe, a manager of drug-and-alcohol and compliance programs. No single type of marijuana drug test — be it blood, urine or saliva — has been determined as definitive in legal cases, he added.
Employers operating under federal regulations have a different set of rules that may conflict with state regulations, he added.

Employers can also require workers with safety-sensitive positions to report any prescriptions they are taking, he said.

“There’s a lot of grey area,” Howe said.

Overall, employers need to focus on concrete measures of performance when disciplining employees, not subjective suspicions of impairment, the panelists agreed.
“Where the law is right now, you’re going to lose that every time,” Diette said.

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