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Monday, June 17 Business

Legal recreational pot a potential ‘conundrum’ for the workforce

Connecticut is moving closer to legal recreational marijuana, and that has employers worried about how it will affect their workplace.

“What we’re concerned with is the fact that we have members that have workplace safety issues,” said Louise DiCocco, counsel with the Connecticut Business and Industry Association, in response to lawmakers approving legislation that would create the framework for the legal sale of recreational marijuana in the state.

Connecticut already allows medical marijuana.

Many of the concerns, DiCocco pointed out in a CBIA article, focused on the effect legalization would have on companies in the defense, manufacturing and construction industries.

The bill still has a way to go before it is finalized, and legislators are considering it a “work in progress,” but employers — particularly federal government contractors — are hoping that they will be able to maintain their zero-tolerance and drug screening policies.

“State initiatives legalizing marijuana for medical purposes do not alter Lockheed Martin’s obligation as a federal contractor to maintain a drug-free workplace,” reads a statement from Stratford-based Sikorsky, which is among companies that must adhere to federal laws, including the Drug-Free Workplace Act of 1988.

Marijuana is still considered a Schedule I drug on the federal level regardless of state laws allowing medical or recreational use. The federal statute, some employers feel, will expose them to civil liability if an employer has a good-faith belief that an employee possesses or appears impaired by cannabis.

“Obviously, you can’t have people utilizing marijuana under federal drug law,” DiCocco said.

State lawmakers say they are considering the business community’s concerns in drafting the final bill.

“What I want to make clear in the legislation is just because state law may have changed to allow the recreational purchase of cannabis, it does not change the workplace environment where an employer needs to make workplace accommodations for that,” said state Rep. Steve Stafstrom, D-Bridgeport, who also serves as co-chairman of the Judiciary Committee, which voted to advance several marijuana-based bills.

Among the legislation the committee moved along this past week was a bill Stafstrom sponsored stating that employers would not have to “make accommodations for or allow employees to use or possess cannabis in the workplace.”

While that is a start, business owners are looking for more, according to DiCocco

“The goal is to have there be distinct language that will allow any employer to set policies that they want, especially those that have federal contracts,” she said.

Marijuana and employment laws in California and Oregon were among the examples that the CBIA want lawmakers to heed in drafting Connecticut’s recreational legalization bill.

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Both states still allow employers to decline employment or fire workers for using marijuana, on or off the job, if they test positive for marijuana in the workplace.

A new standard

Some industry observers think employers that don’t deal with federal contracts may have a harder time in the face of legalization.

“I think companies are going to have to rethink if they are doing drug testing and what it is they are going to be testing for,” said David Lewis, president of OperationsInc, a human services outsourcer in Norwalk. “I think companies are then going to have to figure out how to effectively address those individuals who they suspect of being under the influence.”

In states where marijuana is still illegal, Lewis said, it’s very easy to have a zero-tolerance policy and eliminate people as candidates if they fail a drug test.

But if businesses began refusing candidates based on their legal recreational use of marijuana in states where it is legal, they could end up hurting their businesses — facing a lack of manpower or legal troubles.

“Those factors now have to weigh on businesses,” Lewis said, adding that he expects many businesses may stop testing for pot in their drug screening altogether if cannabis is legalized.

Employers in California have begun adapting to the times, and even in New York City, where recreational pot is still illegal, city council members passed legislation prohibiting private and public employers from drug screening job applicants for marijuana use.

A big danger for employers would be making sure that policies are enforced across the board to avoid civil liability lawsuits.

Steve Lattanzio, an attorney for the state Department of Labor, said employers are already in a tricky situation with legalized medical marijuana. He expects an increase in civil suits amid disciplinary actions if the state moves forward with legalization of recreational marijuana.

“You’ve got to be careful,” Lattanzio said. “That’s why the employers are reluctant to weigh in on this because they don’t want to invade the person’s privacy and find out in court that they didn’t have the legal basis to do the test.”

Drug testing in the workforce is traditionally for pre-employment and random screenings if it is part of the employment policy. An employer can also order a drug screening if they have “reasonable suspicion,” which stands to create more problems for businesses because it leaves employers to prove that the worker was under the influence on the job.

Considering a person can test positive for THC, the chemical in marijuana that can cause users to experience a high, even weeks after they used it, Lattanzio said, it creates a conundrum for businesses.

“The whole problem with this is, unlike alcohol, you can only test positive or negative for a drug,” he said. A blood alcohol test gives a threshold to see if a person is under the influence at the time of the test.

Normally in drug tests, if the reading is positive, Lattanzio said, the doctor at the lab must contact the employee or the person’s physician to find out if there is a legitimate reason for the positive reading.

If the reason checks out, he said, the doctor would tell the employer that the person is clear.

The real problem, according to Lattanzio, is when non-federal contracting employers conflict with a state law. That was the case with a Niantic-based nursing home that rescinded its employment offer to a Connecticut woman who was a medical marijuana user because she tested positive in a pre-employment screening.

The courts ultimately ruled in favor of the applicant because medical users are protected by the state’s Palliative Use of Marijuana Act, or PUMA.

Jordan.grice@hearstmediact.com

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