Because marijuana use has become more widely accepted, most states around the country have ushered in new laws legalizing its use. While marijuana use may be legal, employers are within their right to prohibit use “on the job” or to prohibit their employees from working under the influence, just as they may limit such conduct with alcoholic beverages.
Connecticut
Marijuana possession is permissible for adults 21 and older in public and at home. The law includes employer protections for maintaining safe workplaces:
- Employers can drug test employees and job applicants, and take disciplinary action;
- Employers can adopt policies prohibiting the possession and use of cannabis in the workplace;
- No accommodations are required allowing employees to perform job duties under the influence of cannabis or to possess or use marijuana in the workplace;
- Employers may prohibit cannabis use outside the workplace if the employer adopted a policy under the bill’s conditions;
- Employers are not limited from taking adverse or other employment action upon reasonable suspicion of an employee’s use of cannabis while working or determining that an employee shows specific, articulable symptoms of drug impairment while working.
The law legalizing marijuana use—known as RERACA, or Responsible and Equitable Regulation of Adult-Use Cannabis—includes specific limitations on what some employers can, and cannot, do when their employees use cannabis.
Employers in the following industries are exempt from the requirements of the law:
- Mining;
- Utilities;
- Construction;
- Manufacturing;
- Transportation;
- Education;
- Healthcare and social services;
- Justice, public order, and safety;
- National security and international affairs.
The following positions are exempt from the requirements of the law:
- Firefighter;
- EMT;
- Police or correctional officer;
- Drivers for whom drug screening is required by state or federal law;
- Positions requiring OSHA certification in construction safety;
- Positions requiring a Department of Defense or Department of Energy national security clearance;
- Those governed by an employment contract or collective bargaining agreement that conflicts with this law;
- Positions governed by conflicting federal law;
- Positions funded by federal grants;
- Supervisors of children, medical patients, or vulnerable persons;
- Those with the potential to adversely impact the health or safety of others;
- Positions at a nonprofit, the primary purpose of which is to discourage drug use.
Employers who are not exempt from RERACA and employ workers who are not exempt from RERACA must be mindful that the law places restrictions on an employer’s ability to take adverse action against employees who may have used cannabis. The law prohibits an employer from discharging or taking adverse action against an employee, based on the employee’s use of cannabis outside of work—unless the employer has a written policy providing for that discipline. Whether the employee is under the influence when reporting to work is another story.
Unless an employer is subject to a federal contract or receives federal funding, it may not take adverse action against an employee or applicant based on their having used cannabis before becoming employed. The law also limits an employer’s ability to penalize an employee or applicant, based solely on a drug test that came back positive for THC. In such circumstances, the employer may penalize the worker only where there is reasonable suspicion of the worker’s use of cannabis while at work, being impaired while working, or the employer used a random drug test pursuant to an appropriate published policy and practice.
Massachusetts
The Massachusetts Regulation and Taxation of Marijuana Act expressly permits employers to prohibit employees from using or being under the influence of marijuana in the workplace, but it does not specifically address whether an employer can regulate employees’ off-duty lawful use.
Employers may terminate an employee for off-duty and/or off-site recreational marijuana use because Massachusetts has no protection for employees’ lawful off-duty conduct, such as smoking marijuana. Although neither the law nor the applicable regulations address employee-employer rights in the context of recreational marijuana, employers likely have the right to terminate an employee for recreational marijuana consumption, even where that consumption occurs off duty.
Rhode Island
Rhode Island’s legalization of marijuana was signed into law in late May 2022. The law generally prohibits employers from terminating employment or taking any disciplinary action against an employee “solely for an employee’s private, lawful use of cannabis outside the workplace and so long as the employee has not and is not working under the influence of cannabis.”
There are, however, a few exceptions to this general rule. If off-duty use is prohibited by a collective bargaining agreement, or in certain circumstances, the employer is a federal contractor or subject to a federal law, then the employer can impose necessary limitations on its employees. And, of course, working under the influence removes any job-related protections.
The law also contains a safety-sensitive exception, which applies to any job, occupation, or profession that is “hazardous, dangerous or essential to public welfare and safety.” For these positions, employers may implement policies that prohibit the use of cannabis within 24 hours prior to a scheduled work shift or assignment. Such prohibitions apply to the types of positions that require the operation of an aircraft, watercraft, heavy equipment, heavy machinery, commercial vehicles, school buses or public transportation, use of explosives, public safety-first responder jobs, and emergency and surgical medical personnel.
For unregulated positions or positions that do not qualify for the law’s safety-sensitive exemption, employers may permissibly prohibit employees from (1) using or possessing cannabis in any workplace or location while an employee is performing work, including remote work; or (2) working under the influence of cannabis. Therefore, employers may continue to implement drug-free workplace policies that prohibit the use or possession of cannabis in the workplace or performing work under the influence of cannabis.
New York
The Marijuana Regulation and Taxation Act (“MRTA”) legalized consumption of cannabis in New York for people over 21 years old. Employers are prohibited from discriminating against employees based on their consumption outside of the workplace, outside of work hours and without use of the employer’s equipment or property.
The MRTA amended New York’s Labor Law and now provides that employers may prohibit employee conduct in certain circumstances, as follows: (i) as required by state or federal statute; (ii) where, if no action was taken, the employer would lose a federal contract or federal funding; (iii) the employee, while working, shows specific articulable symptoms of impairment that decrease or lessen the employee’s performance of the employee’s tasks or duties; and (iv) the employee, while working, shows specific articulable symptoms of impairment that interfere with the employer’s obligation to provide a safe and healthy workplace.
Employers in New York may prohibit cannabis during “work hours,” which for these purposes means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work. Such periods of time are still considered “work hours” if the employee leaves the worksite. Employers may prohibit cannabis during “work hours,” which includes time that the employee is on-call or “expected to be engaged in work.” Employers may also prohibit employees from bringing cannabis onto the employer’s property, including leased and rented space, company vehicles, and areas used by employees within such property.
Glenn Duhl is a management-side employment and litigation lawyer at Zangari Cohn Cuthbertson Duhl & Grello P.C. He has been a trusted advisor to AffinEco for over 20 years helping the company prepare for an evolving landscape of legislative changes and personnel policies. Please visit www.zcclawfirm.com.
The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.
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