Peter J. Lefeber

Projecting the Impact of Medical Marijuana on Connecticut Employers

January 16, 2013 Advisory

The smoke has barely lifted since Connecticut's passage of Public Act No. 12-55, "An Act Concerning the Palliative Use of Marijuana" ("the Act"), and the questions continue to pile high. On October 1, 2012 Connecticut became the seventeenth state to allow the physician-authorized use of marijuana for specifically enumerated and "debilitating medical conditions." Companies who fail to adapt to the law's provisions run the very real risk of becoming the Act's first test case, a distinction employers would undoubtedly like to avoid.

The Act permits Connecticut residents who are at least 18 years of age and who have been diagnosed by a Connecticut-licensed physician with cancer, glaucoma, HIV, AIDS, Parkinson's disease, multiple sclerosis, damage to the nervous tissue of the spinal cord with objective neurological indication of intractable spasticity, epilepsy, cachexia, wasting syndrome, Crohn's disease, or post-traumatic stress disorder to register as "qualifying patients" with the Department of Consumer Protection for the right to use medical marijuana. Individuals who work in Connecticut but reside out-of-state are ineligible for the program, as are those who reside in Connecticut but were diagnosed with one of the aforementioned conditions by a doctor who is not licensed in Connecticut. How, where, and by whom the medical marijuana will be harvested and dispensed remains unclear and will be the subject of further regulations issued by the Connecticut General Assembly later this year.

Section 17(b)(3) of the Act prohibits employers with one or more employees from firing, penalizing, threatening, or refusing to hire an employee "solely on the basis of" their status as a "qualifying patient." This same protection applies to the "primary caregiver" of a "qualifying patient," defined as anyone over 18 who "has agreed to undertake responsibility for managing the well-being of the qualifying patient with respect to the palliative use of marijuana." The legislature's use of "solely" suggests that employers can indeed take adverse employment actions against an individual if his or her status as a "qualifying patient" or "primary caregiver" is one of multiple reasons for the decision, though in practice this is likely to lead to difficult questions of proof to support the "other" proffered reasons. Although the Act provides that nothing about Section 17(b)(3)'s protections "shall restrict an employer's ability to prohibit the use of intoxicating substances during work hours or restrict an employer's ability to discipline an employee for being under the influence of intoxicating substances during work hours," as discussed below, significant questions remain about whether a positive drug test can indeed be equated with being under the influence at work. Thus, while the Act provides assurances that an employee's status as a "qualifying patient" will not save him or her from discipline if found to be under the influence of marijuana at work, making this determination may not be so easy.

The Act also precludes the ingestion of marijuana: (a) in a motor bus or a school bus or in any other moving vehicle; (b) in the workplace; (c) on any school grounds or any public or private school, dormitory, college or university property; (d) in any public place; or (e) in the presence of a person under the age of eighteen. While these protections are certainly welcome news for employers, it will be interesting to see how broadly the phrase "in the workplace" will be interpreted. Will it, for example, cover offices of employees who work from home? How about parking lots or other outdoor locations on company property, or during business trips?

As it must, the Act carves out exceptions for employers taking actions required by federal law or to obtain federal funding, even if those actions are based upon someone's status as a "qualifying patient." Indeed, despite Connecticut's decision to embrace medical marijuana, marijuana remains illegal under federal law. The United States Attorney's Office reiterated this stance in a letter to Connecticut legislators shortly before the law's adoption, stating that "growing, distributing, and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities." This position has the support of the United States Supreme Court as well, which has upheld federal marijuana penalties even where state laws authorize marijuana's use for medical purposes. See, e.g., Gonzales v. Raich, 545 U.S. 1, 29, 125 S. Ct. 2195, 162 L. Ed. 2d 1 (2005). Thus, "while the Department of Justice does not focus its limited resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law," the U.S. Attorney indicated, prosecuting individuals involved with illegal drugs—including, perhaps, physicians authorized to prescribe marijuana under the Act—remains "a core priority of the Department of Justice." Employers who rely on federal funding or operate in an industry regulated by federal laws restricting the use of marijuana (i.e., aviation, common carriers) would be wise to invoke the Act's exception when necessary to avoid the time, expense and consequences of a federal lawsuit, or a sudden cessation of critical funding.

As noted above, the Act raises several questions about drug testing. As a preliminary matter, nothing in the Act changes an employer's obligation to abide by Connecticut's longstanding drug testing law, including the requirement that, in most instances, an employer have "reasonable suspicion" that an employee is under the influence such that their work performance could suffer before requiring them to submit to urinalysis testing. See, Conn. Gen. Stat. §§ 31-51t, et. seq. Thus, employers should not see the Act as a threat to their traditional drug testing regimens for those individuals who are not "qualifying patients." However, new quandaries are bound to arise in light of the fact that marijuana can remain present in the body for several weeks. "Qualifying patients" may, for example, test positive for marijuana by virtue of using the drug legally in their homes, raising questions about the utility of testing these individuals for marijuana in the first place. Employers planning to take action against employees whose urine tests come back positive for marijuana would be wise to confirm whether the employee is a "qualifying patient" before making an adverse employment decision. Indeed, under the Americans with Disabilities Act (ADA), employees are under no obligation to disclose their disabilities unless they ask for an accommodation. Employers should also speak with their laboratories to determine whether additional testing (such as blood tests) can be done to ascertain when the marijuana was smoked and whether the individual was under the influence of marijuana at work, because the key inquiry under the Act is one of impairment, not ingestion. Employers who rely solely on urinalysis drug test results when determining the fate of their "qualifying patient" employees appear to do so at their own peril.

These same precautions should be taken when dealing with "qualifying patients" who work in high risk or safety-sensitive jobs. If the job is designated as "high risk" or "safety-sensitive" under federal law (i.e., pilots, school bus drivers, train engineers, etc.), employers may invoke the Act's "federal law" exception and refuse to hire, reassign, or discharge the "qualifying patient." As the United States Department of Transportation recently declared: "It remains unacceptable for any safety-sensitive employee subject to drug testing under the Department of Transportation's drug testing regulations to use marijuana," even in those states which have passed medical marijuana initiatives. For high risk or safety-sensitive jobs not regulated by federal law (for a list of such occupations as designated by the Connecticut Department of Labor, please click here), the Act contains nothing comparable to the "federal law" exception. Thus, while Connecticut law allows employers to conduct random urinalysis tests of employees working in high risk/safety-sensitive jobs, employers who receive test results for "qualifying patients" that are positive for marijuana will once again face the same dilemma. Was the positive test the result of the employee being impaired on the job or ingesting marijuana legally at home? Before making an adverse employment decision—even when dealing with an employee in a position that has been classified as high risk or safety-sensitive—employers should take reasonable steps to corroborate the employee's potential impairment through other means, such as speaking with the employee, interviewing co-workers or witnesses with whom the employee interacted, and/or conducting more enhanced drug testing. While we would like to think that the judiciary will be more deferential to decisions made by employers against "qualifying patients" in high risk and safety-sensitive jobs, we simply do not know what the courts will eventually decide on this issue. Employers should expect their employment decisions to be carefully scrutinized whenever a "qualifying patient" is tested, and always document their investigative and decision-making efforts accordingly.

To avoid the numerous pitfalls presented by the Act, employers should educate their managers, human resources professionals, and hiring personnel about these provisions and consult with their attorneys before drafting new policies or taking adverse employment actions against "qualifying patients" or their "primary caregivers."