Connecticut employers often struggle with questions about managing employee substance use.
The recent legalization of recreational cannabis in Connecticut has only added to the haze around this topic.
This article busts myths around employers’ abilities to address employee substance use.
Myth #1: Employers Can Conduct Drug and Alcohol Tests Whenever They Want
Fact: In the private sector, Connecticut employers are generally prohibited from conducting random urinalysis drug tests unless authorized to do so by federal law (such as Department of Transportation regulations), the employee works in a high-risk or safety-sensitive position (as determined by the state Department of Labor), or the test is part of voluntary participation an employee assistance program.
Otherwise, reasonable suspicion is required.
Prospective employees may be required to submit to a urinalysis drug test if they are notified in writing at the time of application.
Drug tests must follow specified procedures to ensure reliability.
Myth #2: Since Recreational Cannabis Is Legal in Connecticut, Employers Cannot Do Anything About Use
Fact: Connecticut law now allows adults age 21 and over to possess and use cannabis recreationally.
Employers cannot take adverse action against an employee or applicant solely because they used marijuana outside the workplace before they were employed with the organization unless required to do so by federal contract or as a condition of receiving federal funding.
However, employers may implement a policy prohibiting the possession, use, or other consumption of cannabis by an employee, except for palliative use and possession in connection with palliative use (including by caregivers).
The policy must be in writing and made available to employees prior to enactment (new employees when offer/conditional offer is made).
A policy may even ban cannabis use outside the workplace.
While Connecticut law exempts certain employers and positions from the requirement of having an established policy, it is recommended that all employers have a policy to make their expectations clear.
Employers may ban smoking and vaping of tobacco or cannabis entirely on their property and generally must ban it indoors and within 25 feet of an air intake vent.
Employers are not required to allow employees, even palliative users, to come to work under the influence of cannabis.
Myth #3: We Don’t Need to Provide FMLA for Substance Use
Fact: Substance use disorders can qualify as a “serious health condition” under the Family and Medical Leave Act.
An employee is not entitled to take leave due to the use of the substance (e.g. calling out high) but is entitled to take leave for treatment.
However, if the employer has an established policy, applied in a non-discriminatory manner that has been communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse, employment may be terminated even if the employee is on FMLA.
An employee may also take leave to care for a family member receiving treatment for a substance use disorder and may not face any discriminatory or retaliatory action for doing so.
Myth #4: We Can Fire Someone for Alcoholism
Fact: Alcoholism is a disability under the Americans with Disabilities Act.
Employers may apply their drug and alcohol policies to alcoholics, so if alcoholism is causing the employee to miss deadlines or report to work under the influence, the employee may be subject to discipline or termination.
However, the employee may not be disciplined or terminated simply for being an alcoholic and may not be subject to stricter work rules.
Employers may need to make reasonable accommodations to allow an employee to receive treatment.
Myth #5: We Encourage Healthy Living, So We Can Choose Not to Hire Tobacco Users
Fact: Connecticut law prohibits most employers from discriminating against individuals who smoke or use tobacco products outside of work.
Limited exceptions apply, including for municipal police officers and firefighters and nonprofit organizations whose primary purpose is to discourage use of tobacco products by the general public.
Employers do not need to allow smoking breaks.
About the author: Rebecca Goldberg is a partner in Berchem Moses PC’s Milford office. She works with human resources professionals and business managers to counsel them through the most challenging workplace situations, from harassment complaints to concerns about an employee’s mental or physical health. Goldberg frequently publishes articles to help employers keep up with new Connecticut and federal laws, providing timely practical guidance.