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August, 2021-CT’s New Cannabis Law

August, 2021

CT’s NEW RECREATIONAL MARIJUANA LAW

The Day newspaper published an article on Saturday, July 31, 2021, of my comments concerning CT’s recreational cannabis statute, which is effective as of July 1, 2021, and its impact upon private employers in the State.

The new statute is titled, “An Act Concerning Responsible and Equitable Regulation of Adult-Use Cannabis,” or RERAC.  Here are some points to remember about this law and its effect upon employers, included in Sections 98-101 of the new law.

CT is the 19^th state to legalize marijuana for recreational use.  Under this law, individuals 21 or older are allowed to possess 1.5 ounces of cannabis on their person and 5 ounces in their home or locked car. 

This statute erases criminal records for possession up to 4 ounces of cannabis.

Employers with federal contracts or receiving federal funds are still required to test employees for cannabis.

Perhaps the most reaching effect of this new law is that it allows any employer to discipline or fire a worker for using cannabis outside of work, if they have a written policy prohibiting such use and they distribute it to all employees.  Employers that don’t have such a policy in place are not allowed to take punitive action against workers for using cannabis off-site.

It is interesting to note that the federal Americans with Disabilities Act, (ADA), does not provide that an employer may prohibit an employee from the illegal use of drugs outside the workplace.  The ADA was not meant to regulate non-workplace activity.

However, most employers have policies in place that prohibit alcohol and drug consumption at the worksite or prohibit employees from showing up at work impaired by alcohol or drugs.  And the new law states that it does not prohibit employers from continuing to maintain a drug and alcohol-free workplace.

My guess is that few employers will implement a written policy that attempts to control employees’ activities outside the workplace with this law.

In addition to those employers receiving federal funding or federal contracts, the new law exempts certain industries:  mining, utilities, construction, manufacturing, transportation or delivery, educational services, health care or social services, justice, public order, safety and national security.

Exempted positions include the following:  firefighter, EMT, police officer, Department of Defense employees.

The new law states that it does not limit an employer from taking “appropriate adverse or other employment action upon (A) reasonable suspicion of an employee’s use of cannabis while engaged in the employee’s work responsibilities at the workplace or on call.”

“Reasonable suspicion” is clarified to include judgments about an employee’s “speech, physical dexterity, agility, behavior, negligence or carelessness in operating machinery, disregard for the employee’s safety or safety of others, involvement in accident that results in serious damage to employment or property, disruption of manufacturing process, carelessness resulting in injury to employee or others.”

Section 99 provides that a drug test of a prospective or existing employee that yields a positive result shall not form the sole basis for refusal to employ or continue to employ the employee unless failing to do so would put the employer in violation of a federal contract or lose federal funding or if the employer reasonably suspects the employee’s use of cannabis while engaged in the performance of the employee’s duties based upon symptoms described above.

Section 100 provides for enforcement against the employer by a civil action in Superior Court.  The CT Labor Department is specifically excluded from investigation and enforcement.

However, the statute of limitations is short—90 days.  Remedies include reinstatement of an employee or a job offer for a prospective applicant, back wages, attorney’s fees and costs.  However, the law states an employer defense “good faith belief” that an employee used or possessed cannabis.