With the recent legalization of marijuana in Connecticut and Rhode Island, there are several things that employers must be aware of to protect their employees, maintain a safe work environment, and comply with the new laws. Hinckley Allen’s Labor & Employment attorneys covered this topic in a recent webinar and include an update below as well.

Connecticut

Connecticut legalized recreational marijuana use when it adopted the Responsible and Equitable Regulation of Adult-Use Cannabis (RERACA), which went into effect for employers as of July 1, 2022. While retail sales may not commence until the supply chain is licensed and other requirements are met, people 21 or older may now possess and consume cannabis in the state. Employers have the right to maintain a drug-free workplace, but they are prohibited from discharging or taking adverse action against an employee based on cannabis use outside the workplace unless the employer has a written policy providing for that discipline.

The new law also limits an employer’s ability to penalize an employee or applicant based solely on a drug test that is positive for THC. Under the Connecticut law, employers in industries such as construction, education, healthcare and social services, public safety, manufacturing, and more are exempt from these restrictions. Drug testing is also impacted by RERACA. Pre-employment testing is permitted in some circumstances, while random drug testing is only permitted in very limited circumstances. Employers are, however, allowed to conduct drug testing if there is reasonable suspicion or manifestation of an employee’s cannabis usage while engaged in work responsibilities.

Rhode Island

Rhode Island legalized recreational marijuana use with the Rhode Island Cannabis Act which went into effect immediately on May 25, 2022. While it limits employers’ ability to regulate off-duty cannabis use, they are permitted to maintain a drug-free workplace and prohibit employees from being under the influence at work, even in remote locations. Marijuana use is now considered a protected activity in Rhode Island, and employers have limited ability to take adverse action because of an applicant or employee’s positive drug screen for cannabis, absent evidence of current impairment at the time of the test. Private, lawful use of cannabis outside the workplace may not be used as a reason to fire or take disciplinary action against an employee if they are not working under the influence.

There are new limits on employer drug testing as well. Drug testing pre-employment is permitted in certain situations, whereas random drug testing is not permitted. Reasonable suspicion drug testing is permitted with conditions. The Rhode Island law fails to clarify the term “under the influence” and provides no guidance on what it may mean, and an employee may not be considered under the influence solely for having cannabis metabolites in their system.

The legalization of marijuana presents new challenges for employers, and they must tread carefully to remain compliant with the laws. It is important to seek legal counsel when drafting drug use prevention policies and before acting on them. Hinckley Allen’s Labor and Employment team have the expertise and experience to help employers comply with the ever-changing laws and regulations, while still protecting their employees and their workplace.