Season 1, Episode 7: Cannabis in the Workplace: What Employers Need to Know

Sarah Westby: Absolutely. And you probably recall, we've been getting these questions since about this time last year when the statute passed. And so, we saw a wave of concern from employers about what this mean. Are employees going to be using cannabis in the office? Are they going to be coming to work high? And there's a couple of things to keep in mind here. First, the cannabis statute reinforced and even strengthened some provisions of the Clean Air Act, which applies to smoking in the workplace, and it applies to both smoking of tobacco and nicotine products and cannabis products. So, as a categorical matter, you cannot smoke in the workplace. The old law used to allow designation of smoking rooms or designated areas in the workplace where you could smoke. That's no longer allowed. And in fact, you can't smoke cannabis or tobacco anywhere in the workplace or within 25 feet of any door, window or air intake vent with limited exceptions.

Gabe Jiran: Does that include vaping?

Sarah Westby: It does include vaping. Good question.

Gabe Jiran: Yeah. I just had that question the other day actually. Somebody said, "Well, wait a minute, can I vape?" And no, you can't. In regards to marijuana or tobacco, you can't vape, right?

Sarah Westby: Correct, but there are a lot of other ways to use cannabis products, such as edibles, drinks and tinctures, and that's where a lot of these new laws will come in and these new rules for employers. But I think the important thing for employers to keep in mind is that they do not need to allow cannabis use in the workplace and they do not need to tolerate their employees being under the influence of cannabis, just like alcohol, just like any other controlled substance or drug.

Gabe Jiran: That's some of the advice I've given to our clients, is say like, "Let's start at the base level. Let's put cannabis on the same level as alcohol. What rules apply there?" And like you said, you can't come to work drunk, so you can't come to work high either. But it's not quite that simple, I think, mainly because, we'll talk about testing at some point.

With alcohol, you can get a blood alcohol test and it tells you what your current blood alcohol is. With the testing with marijuana, it may show up as a positive, but it doesn't tell you that you're actually high at the time, unless they, have they made any strides on that?

Sarah Westby: As far as I know, the testing is still pretty tricky because, as you note, cannabis can show up in your system days and even weeks after you've used it. And, with some people, they don't show the same clear effects of being high that would give an employer a reasonable suspicion to test as you see with alcohol. A lot of employers are actually taking cannabis off their routine toxicology screens, but it still presents a difficult question for an employer of what to do when you suspect that someone is under the influence of cannabis in the workplace. But there are protections in the law for that.

Gabe Jiran: We'll get into law in a second. I wanted to share something that I'd heard the other day. A client called me and they had an employee that showed up smelling very strongly of cannabis and so they called me and said, "Well what can we do?" And I said, "Well, you confront the employee, obviously." And the employee said, "I wasn't smoking cannabis. I was vaping tobacco. It was flavored to smell like cannabis," which I thought was a pretty novel position for the employee to take, but apparently the employee came in and presented something that was exactly that. And, what I said was, "Well, I don't care what you were smoking. You can't come to work smelling like marijuana." just like you can't come to work smelling like alcohol. I don't care if you used alcohol as like cologne or something. You can't show up that way. Anyway, let's get into what the rules are here. As I understand it, there's actually some employers that are exempt from regulation.

Sarah Westby: So, the law creates a designation between exempt and non-exempt employers and exempt and non-exempt positions. And those rules don't mean that none of the rules apply to exempt employers, or anything like that. What it means is that if you're an exempt employer or an employer of someone in an exempt position, you have even more leeway to regulate cannabis use both inside and outside the workplace. I think, as a baseline, all employers can prohibit use of cannabis in the workplace, but exempt employers can also prohibit use outside of the workplace with or without a policy in place, and non-exempt employers can prohibit cannabis use outside of the workplace, which may come as a surprise to most people, but you have to have a policy in place and you have to give your employees advanced notice. And we probably won't get into this today, but there's a whole host of enforcement issues and discrimination concerns with enforcement for use outside of the workplace. But those are still protections that employers have.

Now an exempt employer is someone who is essentially in a public health or safety position. The primary activity of those employers would include mining, utilities, construction, manufacturing, educational services, healthcare and public order. And those positions, as you would imagine, you want to have heightened protections against any kind of possession or use of adult use cannabis in the workplace, and you may want to have rules and enforcement capabilities against use outside of the workplace as well.

Gabe Jiran: So if we stop there, let's just use the educational establishments, you know, schools. We, our firm represents a lot of schools, and so I guess I could understand the purpose behind that is to say, "Well, school, you could prohibit recreational use inside or outside the workplace because you're supposed to be modeling behavior for students." And it seems like that was the purpose behind that.

Sarah Westby: I think that was one of the purposes behind it, and also you can take action, adverse action against the employee if you find out that they've used cannabis outside of the workplace, and you don't have to have that policy in place or give them advanced notice. That's just, as you said, a modeling behavior.

Gabe Jiran: You look at the, justice, public order and safety positions. Your police officers?

Sarah Westby: Exactly.

Gabe Jiran: Yeah.

Gabe Jiran: I guess that makes sense. There are also exempt positions. We already mentioned police officers. Probably teachers are in there too. But what other ones are exempt positions?

Sarah Westby: Right. So you can have an employer who's not necessarily exempt, but they have positions within their entity or organization that are exempt. So for example, a town. You may have clerical employees who are not exempt, but you may have police officers or fire fighters who are exempt. So, the same rules would apply to anyone in those exempt positions that might not apply to other positions under the umbrella of the same employer. For example, you might need a policy to punish or prohibit cannabis use outside the workplace for certain positions within your organization, but not for others.

Gabe Jiran: We get this question all the time for employees who have CDLs, commercial driving licenses. There's a federal regulation on that, that it requires random drug testing. And so that obviously, and we, as we talked about in the last podcast, cannabis is still illegal on a federal level, so all those rules still apply, right?

Sarah Westby: Absolutely. So the state law does not do anything to affect the rules that apply to those positions designated under federal law, like having a CDL.

Gabe Jiran: For our listeners, if you're not well versed in this, the general rule is that the federal law will prevail over a conflicting state law, but a state law can be more generous than a federal law. We talked a little bit about preemption and stuff in our last podcast, but we don't want to get too far afield there, but that's the general rule. And so, there's this conflict here that has yet to be resolved about states like Connecticut, who have authorized recreational use and what it means on a federal level, but that's a little bit beyond the scope of what we're talking about today.

Let's talk about the rules that would apply to exempt employers and exempt positions versus non-exempt. You already talked a bit about you can prohibit somebody using at the workplace while they're working.

What about taking disciplinary action against an employee who has used marijuana or cannabis outside the workplace?

Sarah Westby: So, that's where the exempt/non-exempt designation comes in. All employers can prohibit use and intoxication in the workplace, but if you are an exempt employer, you can also prohibit use outside of the workplace and take disciplinary action if you find out that someone has used outside of work or off duty without having a policy in place and without giving your employees advanced notice. That's really the key difference there. If you're a non-exempt employer or you're an employer who's dealing with a non-exempt position, you have to have a policy in writing that's distributed to your employees before you take any type of action.

Gabe Jiran: A lot of our clients have drug free workplace policies and such. Are they going to have to revise those now?

Sarah Westby: If they want to prohibit use outside of the workplace, they need to specify that.

Gabe Jiran: So that's something that employers will have to look at, as of July 1, 2022--looking at your policies and making sure that they hit on this issue. Like you said, we have many clients who have stopped testing for it, who basically say, "Whatever you do in your personal life is up to you." Putting it on the same level as alcohol. You just can't be under the influence at work. And so I think employers have to make that decision, but your point is a good one, is if you want to prohibit use outside of work, you need to have that policy.

Sarah Westby: That's right.

Gabe Jiran: What about possession? That seems like a tricky one. I'm not using, but I possess some sort of cannabis product at work.

Sarah Westby: So, both exempt and non-exempt employers have to allow the possession of cannabis by a qualifying medical patient, but they do not need to allow the possession of adult use cannabis.

Gabe Jiran: Okay. So if I'm an employer, I don't care what you do in your free time, but you can't bring it to work, right?

Sarah Westby: Right, unless you have a medical marijuana card in the state.

Gabe Jiran: Got it. Okay. So again, getting back to the simplified view that I use sometimes--you can drink alcohol outside of work, but don't bring a bottle of alcohol to work, right?

Sarah Westby: Right.

Gabe Jiran: Similar, okay.

Sarah Westby: And it gets a little bit tricky with the outside of work policy, like for example, if you have someone on social media who's posting pictures of them smoking or high, just like you would with drinking, and that's where it might come onto the employer's radar. So the employer has to decide, do I want to delve into my employee's privacy like that? If they're making a flagrant show of it, do we get involved, and at what point? That's where, particularly for the non-exempt employers, you really need to be clear in your policy.

Gabe Jiran: I think that's an important point, because, if you use alcohol again. If somebody is on social media showing themselves doing something reckless or careless with alcohol, that may reflect poorly on the employer and then the employer could do something about it. It's a little bit of a fine line, but I think the analogy is there for a cannabis product as well. It'd be a similar analysis.

Sarah Westby: Exactly. And I think that's what the legislators had in mind here with including these protections in the statute.

Gabe Jiran: We talked about teachers, for example. Obviously if they're on social media showing themselves smoking marijuana, that would be a problem for students if they saw that, if they're friending students on social media and that sort of thing. But you could think of a host of other issues where employees are doing things and, it might be associated with the employer. Let's just say they're in uniform.

Sarah Westby: Right, great example.

Gabe Jiran: I’m not even talking about a police officer. I'm talking about, a maintenance worker that has the company logo on their shirt and is all over social media smoking marijuana. Is that the reflection that the employer wants on its company? Maybe not, and that's something that I think could be addressed.

Sarah Westby: Right. And so in that instance, the employer should put in its policy if they're a non-exempt employer that you can't engage in any of these activities while wearing company logos or on company property.

Gabe Jiran: Certainly not in a company vehicle.

Sarah Westby: Yes.

Gabe Jiran: Which does, show up every once in a while on social media. If we look at the other rules that would apply, the policy is something we keep on coming back to. Have you been seeing a lot of activity of employers getting ahead of this and getting their policies revised now?

Sarah Westby: Absolutely. We saw a good deal of that last year when the statute first came out, employers wanted to know, do we need a policy and what does it need to say? And so we were assisting a lot of employers with tweaking and even drafting new policies to cover cannabis.

Gabe Jiran: Yeah. I think that's an important point, is that, as we mentioned before, most employers probably have some sort of policy in place. So, it may be simple revisions to the existing policy or you may need a whole new policy altogether, but that's where we come into the picture as employment lawyers, is that we can look at those policies and, really have a discussion with the client as to what is your goal here, and then we can fashion the policy accordingly.

Sarah Westby: Definitely. And of course with any employment situation, you're going to have tricky questions that come up that because you to rethink your policy, redraft your policy, or even double down and say, "Gee, we're really glad that we hired Shipman & Goodwin to help us draft this policy."

Gabe Jiran: Right. Nice plug there. Yes. I think, if we talk about the takeaways from this for the employers, I mean, hopefully we've explained a bit about what the rules are and what you can and can't do, which still, I think a lot of employers are unclear about, but, I think, to your point, these rules, the ways that you deal with these issues evolve over time, it's just like legislation that something happens and then you have to do something in response to it. And so, I would encourage employers to not think of this as, we've taken one stance, that's it forever and we're never going to change. Employers have the ability to change their policies, reconsider their positions.

I will say as a labor lawyer, if there's a union involved, you might have to negotiate some of these things, and so keep that in mind. But, with this being fairly recent, in Connecticut anyway, employers I think need to be cautious  in their initial stance, but also reserve the right to change them if necessary. On that point, it seems like the key here is communication with the employees. Would you agree?

Sarah Westby: Definitely. And, one thing I think we'd be remiss if we didn't address is whether employers need to make reasonable accommodations for medical marijuana patients to use cannabis either while on duty or before work that could have an effect on their ability to do their jobs while working, and just like any other disability and any other drug that can be used to treat a medical condition, employers always need to consider whether they need to make reasonable accommodation for that person to be able to do their job if they have a qualifying disability in Connecticut.

For example, if someone has anxiety and they use cannabis to treat their anxiety, do you need to make an accommodation for them to either use cannabis while on duty or before work, which may have an effect on their presence in the workplace? And so it's a difficult question that needs to be considered case-by-case. It's important for the employer to remember that you don't have to grant an accommodation that's going to cause the worker to be impaired in terms of not being able to perform the essential functions of their job or if it's going to impose an undue hardship, but if you have an employee who is doing a desk job, they use cannabis to treat anxiety and it's not going to have any detrimental effect on the ability to do their job or their presence in the workplace, then you might want to consider allowing that employee to do so with certain parameters. And again, Gabe, you mentioned communication. It really all comes down to communication between the employer and the employee and setting clear rules.

Gabe Jiran: If we think of it that way, for treating a medical condition, think of it as any other prescription or, drug or controlled substance. Somebody that's on pain medication, if they have to take pain medication just to get out of bed and come to work and it doesn't otherwise impair their cognitive abilities and ability to do the job, maybe that’s okay, but obviously you can't have somebody who's on pain medicine driving a big tractor or a truck or something like that.

The other thing that you mentioned at the beginning about the possession for somebody who has a medical card, I think there are circumstances where you could prohibit possession. For example, if somebody works in a detention facility or a correctional facility, you obviously can't come in with drugs there because the inmates might be able to access them, and that would be the same as anything else. You wouldn't allow a correctional officer to come to work with Oxycontin or something like that. And so, I think you have to look at each specific circumstance, from an accommodation standpoint and always think about is it a reasonable accommodation and is there an undue burden associated with it.

And so the analysis is the same. It gets a little complicated, I understand, but it's basically the same analysis now that we have it as a medical treatment, and would there be some issue with that. Always coming back to what are the essential functions of the job and can the employee actually perform them. Thank you for circling back to that. I think if we wrap up and, leave our audience with one takeaway that we've mentioned, it's looking at your policy, communicating with employees. I think open conversations are very important in this subject matter. And employees should understand the rules and the employers should communicate to them what they are so that there are no surprises.

So, we're going to wrap it up here. Thank you again, all, for listening, and, we hope that you'll listen again soon.

HOST: Thank you for joining us on this episode of From Lawyer to Employer: A Shipman Podcast. This podcast is produced and copyrighted by Shipman & Goodwin LLP, all rights reserved. The contents of this communication are intended for informational purposes only and are not intended or should not be construed as legal advice. This may be deemed advertising under certain state laws. Subscribe to our podcast on Spotify, Apple Podcasts, Google Podcasts, or wherever you listen. We hope you will join us again.