On June 22, 2021, Governor Ned Lamont signed into law the Act Concerning Responsible and Equitable Regulation of Adult-use Cannabis making adult possession and use recreational marijuana legal.
The law permits individuals 21 years of age and older to possess and use recreational cannabis. Individuals cannot possess more than one and one-half ounces on their person or more than five ounces in a locked container in their home or in a locked glove box or trunk of a motor vehicle. Provisions regarding lawful possession went into effect July 1, 2021, but provisions which impact employers will take effect on July 1, 2022.
The law also contains provisions that expunge many past marijuana-related convictions. Background screening providers and consumer reporting agencies will be required to update their records accordingly, permanently deleting criminal records that have been erased under the statute within 30 days of receiving information on their erasure.
Employers will not be required to allow employees to work while under the influence of cannabis or to possess, use or otherwise consume cannabis while working or on the employer’s premises, except for possession of medicinal cannabis by qualifying patients.
In addition, employers remain free to implement drug-free workplace policies that prohibit employee possession, use and consumption of cannabis in the workplace. Such policies must be in writing and made available to employees prior to enactment. An employer must make its written cannabis policy available to prospective employees when making an offer of employment and may not discharge or take any other adverse action against an employee for off-duty cannabis use unless done in keeping with such a policy.
The law also prohibits an employer from taking adverse action against a prospective or current employee based on the individual’s prior cannabis use outside the workplace before being employed by that employer unless failing to do so would cause the employer to violate a federal contract or lose federal funding. Several positions and industries are exempt from this provision, including law enforcement, emergency response and many safety or security sensitive roles.
Employers retain the ability to conduct pre-employment drug testing or fitness for duty evaluations; however, effective July 1, 2022, a positive test result solely for marijuana may not form the only basis for refusing to employ or otherwise penalize a prospective or existing employee unless:
- The position or industry is listed as exempt in the statute;
- Failing to do so would cause the employer to violate a federal contract or lose federal funding;
- The employer reasonably suspects an employee’s cannabis use while working;
- The employee displays symptoms of drug impairment while working; or
- The drug test was conducted under a random drug testing policy that provides for adverse action for a positive test result for this substance.
The law contains a private right of action for violations of the statute’s employment protections. Remedies for individuals who prevail in a lawsuit against an employer may include reinstatement, back wages and attorney fees.
Employers should consider carefully how the new law affects their existing drug testing procedures and hiring processes and review existing policies to ensure compliance. Employers that engage in drug testing should ensure that reasonable suspicion training is provided to supervisors/managers and/or human resources to ensure compliance.