Connecticut employers concerned about the use of legal marijuana on the job are faced with a dilemma given the limits of current drug testing technology and federal requirements, employment lawyers say.
“It’s not like a test for alcohol where you can immediately figure out someone’s current level of THC,” said John Blair, associate counsel with the Connecticut Business Industry Association. “I don’t think a test like that exists.”
Patrick McHale, an employment lawyer in Hartford, said the lack of a test that allows employers to determine whether a worker is under the influence of marijuana at the moment of testing creates a challenge for employers hoping to limit marijuana use at work.
“If somebody is not acting quite right at work and they get into an accident and someone gets hurt, you can test them and immediately know whether they were intoxicated from alcohol use,” McHale said. “But with THC, you have no idea whether that person is high right then or whether the THC is in their system from two weeks ago when they used recreational marijuana on the weekend.”
Connecticut legalized recreational marijuana last month, and the first components of the new law went into effect on July 1. New regulations on employers will not go into effect until one year later, and businesses across the state are taking the next twelve months to prepare for what legal marijuana will mean for them and their employees.
According to the law, most businesses in Connecticut will no longer be able to decide not to hire an applicant due to a positive result for marijuana on a pre-employment drug test. Exceptions to this rule include federal employers, along with workers in healthcare, transportation, law enforcement, and more.
Any business in Connecticut can still ban their own employees from using recreational marijuana, both on the job or on their own time, as long as the employer distributes a written policy to all employees and applicants at the time of an offer of employment.
“The key question is whether employers want to prohibit their employees from using recreational marijuana outside of work,” McHale said. “Most of the clients I represent don’t want to get involved in their employees’ personal lives, but there are exceptions, like for jobs in public safety, hospitals, or nursing homes.”
Sarah Skubas, a principal at employment law firm Jackson Lewis PC, said that most employers she works with that are considering banning marijuana use are doing so due to safety concerns.
“It’s driven mostly by industry,” Skubas said. “More safety-sensitive businesses tend to be more concerned about the potential for impairment.”
Other businesses are contemplating restricting employee drug use for reasons of public perception, Skubas said.
“They’re thinking about what image they’re trying to convey, or what company culture they want to cultivate,” Skubas said. “It depends on what service they provide to the public, and how their customers feel about these issues.”
Still, Skubas said that given the challenges businesses in Connecticut are facing to attract workers, she did not anticipate many employers wanting to add another barrier to hiring. McHale said employers he works with are facing similar concerns.
“Most employers don’t want to exclude so many people from the already limited applicant pool of people interested in working for them,” McHale said.
Federal defense contractors do not have that choice. Marijuana remains illegal at the federal level, and federal defense contractors fall under the Drug-Free Workplace Act of 1988, which mandates that contractors provide drug-free workplaces as a precondition for receiving a federal contract.
“Electric Boat and many other Connecticut businesses opposed legalization of recreational marijuana because of its impact on workplace safety and workforce development objectives,” said Elizabeth Power, Electric Boat’s director of communications, in a statement to CT Examiner. “In recognition of these concerns, the drafters of this legislation exempted businesses in certain industries, including Electric Boat, to avoid any adverse safety and workforce development impacts.”
State Rep. Joe de la Cruz, D-Groton, said his opposition to the legalization of marijuana came from his concern that federal contractors like Electric Boat would no longer be able to recruit a local workforce.
“I coached basketball, baseball and wrestling before I came up to Hartford, so I know hundreds of kids, and I’ve had the same conversation probably 40 times,” de la Cruz said. “I ask these kids I know and love why they’re working at Walmart, why they’re in landscaping, when Electric Boat is literally right next door. They say, coach, I can’t pass the test, and I want to scream.”
In recent comments to CT Examiner, Congressman Joe Courtney largely dismissed those concerns.
“States with a major defense industry presence have all been able to address this issue in terms of workforce,” Courtney said. “People make assumptions about what motivates people, particularly ones who work at Electric Boat, and I think they should spend a little more time talking to folks there … They already have to get a security clearance, so they’re dealing with a population which has already shown the ability to follow rules and live clean.”