Nearly 100 days after Connecticut passed a law making recreational marijuana legal in the state, employment attorneys have been busy fielding questions from their clients on rights under the new law.
In fact, Patricia Reilly, chairwoman of Murtha Cullina’s labor and employment practice group, said representatives from about 150 different companies took part in her firm’s webinar last month on recreational marijuana and what the new workplace rules are and will be.
While decriminalizing marijuana took effect July 1, many rules related to workplace and cannabis won’t take effect until one year later in 2022.
Still, Reilly said, the inquiries at the September webinar came in fast and furious to her and her colleagues.
“The questions focused on how companies can enforce existing drug and alcohol policies,” Reilly said. “The answer to many of the questions was that you need to have a written policy in place to prohibit use of consumption inside or outside the workplace.”
Reilly and others interviewed for this report noted that there are two types of employers: exempt ones, who may set their own drug policies, and the nonexempt.
Exempt employers includes such businesses as health care, trucking and jobs with a safety element. Those companies don’t have to have a written policy come next summer, but it’s advised they do.
The biggest difference with the new law, Reilly said, is that nonexempt employers can no longer refuse to hire someone who failed a test prior to employment.
Andrew Glassman, a member of Pullman & Comley and part of its cannabis practice group, said Tuesday his firm is advising dozens of clients to revise their workplace drug policy handbooks and guidelines.
“You have to have a clear policy in place and zero-tolerance policy and detection issues are more difficult. You can’t rely on urine analysis alone; that will not do it,” Glassman said.
Employment attorneys and others are telling their clients that, under the new law, that “workers have a right not to be fired if there are trace amounts [of marijuana] in their system,” Glassman said.
What they can be disciplined or fired for under the new law are clear signs of intoxications, Glassman said.
“They can’t be fired unless they are clearly under the influence of an intoxicant during an inquiry,” he said.
In addition, Glassman noted, disciplinary measures can also be taken if “someone is looking like they are having difficulty [because of drug use] performing simple tasks and functions of their job they used to be able to do.”
Jared Rosenthal is the founder and chief executive officer of Health Street, a drug/DNA testing company based in New York City.
Rosenthal, who said he has more than 20,000 clients nationwide, said many have questions and queries about the marijuana laws in their respective states.
“This is an extremely fluid situation,” Rosenthal said. “Be advised that workers absolutely,100%, can’t come to work under the influence. While companies still have many rights, the biggest thing in the employer’s favor is public opinion, which is shifting towards general acceptance of marijuana and the understanding that if you use marijuana on your own time, it should be treated similar to alcohol.”
Rosenthal said he’s seen a trend in recent months where employers are looking to see if their workers are taking drugs such as opioids, which can be more potent than marijuana.
“The trend is that companies are still testing, but they are not testing people as much for marijuana,” Rosenthal said. “They are looking for the stronger drugs. More than 90,000 Americans died of opioid overdoes in 2020 and opioids, along with cocaine and amphetamines, are the bigger concerns for many employers.”