The Future of Drug Testing and Employer Drug Policies

| Nov 17, 2016 | Employer Policies |

This election, seven states and the District of Columbia passed expansive marijuana laws that permitted the recreational use of marijuana or cannabinoids.    This means that within these states and the District of Columbia people can openly smoke or ingest cannabis with no criminal repercussions.

While Connecticut has not embraced this libertine attitude toward marijuana use, Connecticut’s Palliative Use of Marijuana Statute (Conn. Gen. Stat. § 21a-408 et seq.) permits the use of marijuana by qualifying patients to treat certain medical conditions.  This statute also prohibits an employer from refusing to hire, disciplining, or discharging an employee because of their status as a qualifying patient or primary caregiver.  Conn. Gen. Stat. § 21-408p(3).

However, this issue can be problematic for private employers who conduct reasonable suspicion or random drug tests pursuant to Conn. Gen. Stat. § 31-51t et seq. or through a collective bargaining agreement for municipal employers.  It also raises questions about what an employer should do if an employee comes and/or returns to work under the influence of medical marijuana.

For starters: employers can still restrict employees from coming to work under the influence of drugs even if those drugs are medically required. Having a drug use policy that lays out what is prohibited as well as explaining what action will be taken for violations is imperative.  This policy should be provided to employees or posted in a highly visible area to put employees on notice.

In addition, drug testing may still be used especially if the business falls under federal regulations (which still prohibit the use of marijuana as a class 1 narcotic).  These businesses may employ CDL drivers; drivers whose occupation is considered “safety sensitive”; or who otherwise fall under the regulations of the Federal Motor Carrier Safety Administration.  In addition businesses who receive federal grants or who are considered a federal contractor may be required under the Federal Drug Free Workplace Act to have a policy that prohibits the “unlawful manufacture, distribution, dispensation, possession or use of a controlled substance” as well language explaining what remedial action that will be taken for violations.  If a federal regulation does require drug testing, it is important to ensure your drug testing policy includes all required provisions of the regulation or else civil fines (and in some cases debarment from federal contracts) can ensue.

Because this issue is evolving, and medical marijuana may open the door to a number of other issues (including the Americans with Disabilities Act and the State and Federal Family and Medical Leave Act) it is best to speak with an attorney about drafting a drug use policy and/or a drug testing policy.  Our attorneys are well versed in this facet of the law and have decades of experience drafting drug use and testing policies as well as advising employers on best practices.

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