Although legalization of recreational marijuana in Connecticut still remains an open question, employers are already looking for information on what they need to do vis-à-vis their workplace policies.
It won’t be “Smoke ’em if you got ’em” at many businesses.
“You have some companies in the state that have contracts with the DOD (U.S. Department of Defense), some that need national security clearances,” said John Blair, associate counsel with the Connecticut Business and Industry Association. “From our perspective, (Senate Bill 888) offers employers the protection to do what they need to do.”
The bill, which Gov. Ned Lamont has been pushing, includes language that allows employers to continue to drug test current and prospective employees, with some limitations. Companies in the aerospace and defense industries, for example, will continue to have the right to adhere and enforce federal regulatory drug testing requirements and obligations. Recreational marijuana is not legal at the federal level.
Blair said that some of the CBIA’s member companies had worked with Lamont’s office to draft SB 888, which, while originally viewed as something of a slam dunk for the legislature, has run into complications when it comes to social equity provisions.
At issue for some members of both parties are that SB 888 does not adequately address giving minorities and other members of the population who have borne the brunt of marijuana-related criminal charges enough representation when it comes to operating their own cannabis businesses.
Some social equity amendments were made to the bill in early April before winning approval from the Judiciary Committee. “SB 888, as amended by the Judiciary Committee, provides employers with the tools they need to protect health and workplace safety and to stay in compliance with federal law,” Max Reiss, Lamont’s director of communications, told the Business Journal.
However, some opponents still believe further amendments are necessary.
State Rep. Robyn Porter (D-Hamden, New Haven), co-chair of the legislature’s Labor and Public Employees Committee, has introduced HB 6377, which creates a workforce development framework for people with marijuana-related convictions, allows workers in the industry to unionize and allows home cultivation of up to six cannabis plants. SB 888 does not include a homegrown provision except for medical marijuana users.
“I think (888 is) in the best interest of public health, and I don’t want to surrender this to the underground market and I don’t want to surrender it to outside markets,” Lamont said following a state Bond Commission meeting in early April. “That said, if you get a bill that you think doesn’t meet some basic requirements, you’ll put it off another year just like they have for many years in the past.”
“You can’t let the perfect be the enemy of the good,” he added.
“We are flatly against it,” Blair told the Business Journal about HB 6377.
In February, CBIA Vice President of Government Affairs Eric Gjede testified before the state Labor and Public Employees Committee that, “Many businesses justifiably feel their employees or customers deserve the right to be free of concerns about whether the person next to them operating a piece of machinery, or driving their bus, or injecting their arm with a vaccine, etc. is under the influence.”
“Employers are increasingly under pressure to ensure safe workplaces for employees,” Gjede said. “While it may be possible for some employees to conduct job-related duties under the influence of marijuana, it is certainly not the case in many circumstances.”
He also cited the results of a National Institute on Drug Abuse study, which found 55% more industrial accidents, 85% more injuries and 75% greater absenteeism among employees who tested positive for marijuana compared with those who tested negative.
However, Blair noted, the CBIA is not against legalizing recreational marijuana. “We just want it to be done in a reasonable way,” he said.
Bracing for reality
Nevertheless, as Lamont’s remarks above indicate, it seems to be a question of “when” rather than “if” when it comes to legalization. With Massachusetts having legalized it in 2016 — sales began in 2018 — and the governors of New Jersey and New York recently having signed pro-legalization legislation, arguments continue to mount that the Nutmeg State could lose millions of dollars from residents who simply travel to those states to buy cannabis.
Lamont has estimated that a legalized cannabis market could result in $3.6 million in revenue the first year and increase to roughly $97 million by fiscal year 2026. A UConn economist has said that Connecticut could reap up to $952 million over five years.
For businesses not involved in defense, national security, education and other such disciplines, clear communication of altered workplace policies is a must.
Megan Carannante, co-chair of the Labor, Employment and Employee Benefits Department at Bridgeport law firm Pullman & Comley, said that such procedures should essentially follow what happened in the wake of Connecticut’s 2012 legalization of medical marijuana.
That law “makes it very clear that employers don’t have to allow their employees to be under the influence while at work,” Carannante noted.
One of the big concerns, she continued, is “if employees are coming to work under the influence. Tests don’t really show if you’re under the influence of marijuana, like they do with alcohol, because cannabis remains in the system (longer).”
Tetrahydrocannabinol (THC) can stay in the body for several days or even weeks, according to medical research.
Instead, Carannante said, managers and supervisors should be trained to recognize signs that an employee may be under the influence at work; erratic or unusual behavior, problems with maintaining coordination — not to mention the odor if they have been smoking cannabis — are common symptoms to watch for.
“My understanding (of SB 888) is that it is an attempt to decriminalize and destigmatize the use of cannabis,” she said, “and to carry that destigmatizing over into the employment context.”
While she said it is “very, very clear” that employers can prohibit any type of recreational marijuana use at work, “it says that nonwork-related recreational use, on their own time, is not something that the employer should discriminate against, or represent cause for discipline or termination.”
She further noted that those who work for businesses with offices in different states need to pay attention to those states’ laws.
“If your home office is in Massachusetts, where it’s legal, and you go to the Connecticut office and for some reason get tested and are found to be under the influence, you would face the Connecticut penalties,” Carannante said.
Both she and Blair underscored that employers should reexamine their policies if and when recreational marijuana is legalized — something that was echoed by Reiss in the governor’s office.
“In general, employers should review their employment and workplace policies, establish policies regarding the adult use of cannabis and make their employees aware of their policies in regard to adult use of cannabis,” he said. “As a matter of regional competitiveness, the governor has said previously that employers prohibiting or strongly discouraging use of cannabis outside of work on personal time could discourage potential job candidates.”
Indeed, Lamont has made mention of the potentially dampening effect of drug testing on hiring practices, though the CBIA’s Blair questioned how realistic that was.
“We haven’t seen a huge outcry of people saying, ‘Hey, I can’t get a job’” because of testing, he said.