With its recent passage of a law allowing for the palliative use of marijuana, the legislature made Connecticut the 17th state in the nation to legalize this practice. The bill, which becomes effective on Oct. 1, 2012, has myriad implications for Connecticut employers and, unfortunately, leaves many questions about its application unanswered.

The bill contains two key provisions about which employers should be aware. First, it prohibits employers from refusing to hire, firing, or taking any other adverse employment action against an employee solely on the basis of the individual’s status as a user of medical marijuana or as the primary caregiver of a user of the drug. In essence, this means that qualified medical marijuana users and their caregivers are new protected classes under state law. Second, the bill prohibits use of marijuana in the workplace and preserves an employer’s ability to prohibit the use of “intoxicating substances” at work as well as the ability to take action against an employee for being under the influence of such substances during work hours.

Though seemingly straightforward at first glance, a more involved analysis of these provisions results in more questions than answers about how employers are to administer its terms. As an initial matter, the word “solely” is left undefined, leaving unanswered the question of whether an employer may not consider an applicant or employee’s use of medical marijuana at all in making an employment decision, or whether the employer may consider it as one of many factors in the decision-making process. Similarly, the term “in the workplace” is left undefined, prompting the question of whether the prohibition on use applies to employees who work from home.

The legislature’s choice to use the terminology “intoxicating substances” when describing the basis upon which an employer may discipline is equally of note, leaving open the question of whether employers must view medical marijuana use in a manner identical to employees’ use of all other prescription pain medication and if so, must take an “all or nothing” approach to any resultant disciplinary action.

How ADA Applies

Apart from the questions inherent in the specific language of the bill, the legalization of medical marijuana prompts the larger question of whether users are entitled to reasonable accommodation or other protections afforded by the Americans with Disabilities Act (ADA) or associated state law disability discrimination prohibitions. The U.S. Court of Appeals for the Ninth Circuit recently decided a case that provides insight into how courts may tackle an ADA claim on this basis in James v. Costa Mesa, No. 10-55769 (9th Cir., May 21, 2012).

The plaintiffs in the James case were users of medical marijuana who sued two counties in California for shutting down medical marijuana dispensaries. They claimed the action violated the public accommodation protection in Title II of the ADA. The plaintiffs argued they should be afforded ADA protection because the law exempts only “current users of illegal drugs” and, as marijuana is legal under California law, the exemption should not apply.

The counties argued that because the ADA is a federal law, the exemption should apply because marijuana remains illegal under federal law. The court agreed with the counties and held that the ADA does not protect users of any drug that is illegal under federal law, even if its use is allowed by applicable state law. While not an employment case and not a decision dispositive in the Second Circuit, the thoughtful analysis in the James decision is likely to be viewed favorably if the issue were to arise here.

As a decision based solely on federal law, the James decision does not resolve the question of protection, or lack thereof, under Connecticut law — an area that invariably will be the subject of litigation in the near future. We suspect an employee accommodation request that s/he needs to use medical marijuana off site mid-day in order to effectively perform job functions may be the situation that prompts the first state law claim, but that remains to be seen. In the meantime, the state Department of Consumer Protection has regulatory authority over the law and may issue regulations in advance of its effective date that will provide additional insight for employers.

What Employers Should Do

While there are and likely will be for some time to come many unanswered questions about the law, there are some things employers can do now to prepare for its implementation. As a threshold matter, employers should examine whether they are subject to any federal law or federal funding requirements that conflict with the law, in which case the company is exempt from its application. Assuming the law applies, employers should review any employee drug-testing practices as well as all drug-free workplace policies in advance of the Oct. 1, 2012 effective date.

As far as drug-testing practices, the law does not prohibit the continuance of such a practice and in fact, claims that drug testing was rendered unlawful by similar laws in other states have largely resulted in rulings in favor of the practice. Employers should consider revising drug-testing protocols, however, to impose a requirement that the employee provide notice and documentation of (to use the drug lawfully, the bill requires that individuals register with and obtain a certificate from the Department of Consumer Protection) their use in advance of the test. While employers should analyze each positive test for marijuana on a case-by-case basis, requiring advance notice of this nature should serve to at least minimize after-the-fact claims that the drug was for palliative use. In the face of that claim, however, employers should permit the employee to provide proof of qualifying usage status prior to taking any action.

Drug-free workplace policies and administration should also be reviewed and revised to address the use of medical marijuana in the workplace and the use of it prior to arriving at work or in the midst of the work day. In revising these policies, employers should view medical marijuana use as equivalent to the use of other prescription pain medication and craft policy language reflective of the company’s view on usage of that category of drugs as a whole. Policies should include provisions articulating company policy on both usage prior to and during the workday, as well as a statement on possession of this type of medication at work.

While the law is silent on the lawfulness of possession of medical marijuana in the workplace, it can be relatively safely assumed that courts would construe the bill’s prohibition on usage at work to extend to possession at work. Because the law is so new and open to interpretation, however, employers are well-advised against blanket policy statements or practices that dictate ministerial, uniform action when presented with a situation related to a qualified medical marijuana user and to seek counsel should a situation arise. •