In our Fall 2012 LeClairRyan Labor & Employment Law Newsbrief, we talked about employer rights with regard to drug testing under the Americans With Disabilities Act. In the case of suspected illegal drug use, we accurately told you that employers may test any employee for the use of illegal drugs prohibited by the Controlled Substances Act. For employers in Connecticut, and many other states, the analysis just got potentially more complicated.

Recently, Connecticut joined the seventeen other states that recognize legal use of medical marijuana (Alaska – 1998; Arizona – 2010; California – 1996; Colorado – 2000; Delaware – 2011; Hawaii – 2000; Massachusetts – 2012; Maine – 1999; Michigan – 2008; Montana – 2004; Nevada – 2000; New Jersey – 2010; New Mexico – 2007; Oregon – 1998; Rhode Island – 2006; Vermont – 2004; Washington – 1998; and, District of Columbia – 2010). This is, of course, in direct contravention of the federal Controlled Substances Act, which includes marijuana as a Schedule 1 drug, and therefore a “controlled substance” under the Act. State medical marijuana laws do not alter the fact that technically, possession, manufacture and distribution of marijuana, even for medical purposes, violates federal law.

However, in late 2009, federal guidelines took a non-enforcement policy position, stating that federal resources should not be focused on individuals who legally use marijuana under state medical marijuana laws. But, complicating matters for employers, the policy pendulum more recently seems to be swinging in the opposite direction. More recent guidance from the Depart-ment of Justice remind states that individuals who are in the business of growing, selling or distributing marijuana are in violation of the Con-trolled Substances Act, regardless of state law. The guidance went one step further by advising that making money off the marijuana business, even if legal under state law, may also violate federal money laundering statutes and financial laws.

These mixed messages from federal and state government leave employers with much to be wary of as this area of law develops.

Who and What is Covered Under Connecticut’s New “Medical Marijuana” Law? Connecticut HB 5389, “An Act Concerning the Palliative Use of Marijuana”, officially became law in on October 1, 2012. It was approved in both the Connecticut House and Senate by margins of less than half. While it has been over two months since the law went into effect, it remains unclear what, if any impact it will have on Connecticut employers, as procedures, and maybe more importantly, guidance to employers, are in the infancy stage.

The Connecticut law allows “qualifying patients” to possess medical marijuana for “palliative use”.

  • A “qualifying patient” is, in part, a Connecticut resident who is 18 years of age or older.
  • “Palliative Use” refers to the alleviation of a qualifying patient’s symptoms related to a “debilitating medical condition.”

Some approved “debilitating medical conditions” under the Connecticut law, and most other state laws include: cancer, glaucoma, HIV/ AIDS, Parkinson’s disease, multiple sclerosis, certain spinal cord injuries, epilepsy, Crohn’s disease, and posttraumatic stress disorder.

The Connecticut law also includes a variety of “wasting syndromes”, which may, or may not include eating disorders such as anorexia.

“Palliative Use” allows a “qualifying patient” to acquire and possess both marijuana and paraphernalia relating to marijuana, in order to alleviate symptoms or effects of the patient’s “debilitating medical condition”. The Connecticut Department of Consumer Protection is responsible for determining what, if any other “medical condition, medical treatment or disease[s]” may be approved for medical marijuana use. In case you were wondering…the term “qualifying patient” excludes guests of the Connecticut Department of Corrections, regardless of their medical condition. However, the law does allow a qualifying patient’s “primary caregivers” to also purchase and possess medicinal marijuana and related paraphernalia.

Implementation and Enforcement The Connecticut Department of Consumer Protection is responsible for the overall administration of the law. However, according to the Department, “physicians are the gatekeepers to the medical marijuana registration system.” Once a Connecticut physician, with an active Connecticut license determines that his/her patient has a condition qualifying for the palliative use of marijuana, the physician may register, and access the Department of Consumer Protection’s online registration system. No patient or patient caregiver may log into the system without qualified physician initiation.

The Department of Consumer Protection will also issue licenses to producers and to dispensaries. Dispensaries must be licensed pharmacists. A licensed dispensary may distribute to a qualifying patient an amount of “usable” marijuana necessary to ensure uninterrupted availability for one month. The Department of Consumer Protection is responsible for determining what a “one month” supply looks like.

Employee/Employer Protections Under The Medical Marijuana Law. Connecticut’s and several other state medical marijuana laws have attempted to put safeguards in place to protect qualifying patient employees. For example, under the Connecticut law:

  • No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of the employee’s status as a qualifying patient.
  • No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of the employee’s status as a primary caregiver.
  • No employer may presume that a drug test result that is positive for marijuana means that the employee used at work or was under the influence at work.

The law also puts certain safeguards in place for employers. For example:

  • An employer may discipline an employee for being under the influence of an intoxicating substance, including medicinal marijuana, at work.
  • An employer may prohibit the use of intoxicating substances, including medicinal marijuana, during work hours.
  • An employer may discriminate against an employee or applicant user of medical marijuana if required by federal funding or contracting provisions. For example, employers that are covered federal contractors must comply with the federal Drug Free Workplace Act of 1988, which requires those employers to prohibit the use of marijuana as a condition of participation.

While the statute provides some protection to both registered medical marijuana users, and employers, it does not define, for example, when an employee will be considered “impaired” by medical marijuana use or “under the influence” of the drug. This is, of course complicated by the fact that there is no set measure, like a bloodalcohol level test, for example, to determine how much marijuana is in someone’s system.

Steps That Employers Should Take Now. In making employment decisions regarding medical marijuana users, employers should take into account the following:

  • Revise and/or update policies to reflect the new law and requirements, including updating policies prohibiting the illegal and improper use of drugs in the workplace.
  • Educate staff on the existence of the new law, and its requirements and prohibitions.
  • Provide supervisor/manager training to educate staff on the signs and symptoms of an employee who is “impaired” or “under the influence”.
  • Educate staff to include guidance on proper documentation of observations of signs that an employee is “impaired” or “under the influence” in the event of subsequent litigation.
  • Employers that are governed by any federal statutes (Department of Transportation regulations requiring drug testing, and OSHA, for example) must follow federal law.
  • Remember that no statute requires an employer to tolerate employee medical marijuana use, or impairment in the workplace.

Given that there are many federal and state laws governing the implementation and enforcement of workplace drug policies, employers may find it helpful to obtain the assistance of counsel in navigating these yet largely unchartered waters.