The possibility of legalized marijuana creates questions for employers

Now that Massachusetts has opened its first two fully licensed recreational marijuana shops, could Connecticut be next?

Gov.-elect Ned Lamont has indicated he's in favor of legalizing recreational marijuana. The tentative budget presented to him by the Malloy administration included legalization as a revenue generating opportunity. Meanwhile, medical marijuana has been legal in Connecticut since 2012.

Some employers in the state are already thinking about how they might handle such a change, and what impact it might have on their employees.

"I would view it the same as alcohol," said Rod Cornish, owner of Hot Rod's Café in New London, which has about 25 employees. "My employees can't drink before or during work. It'd be the same thing with marijuana."

Cornish thinks it's not a matter of if but when Connecticut legalizes recreational pot.

"Employers are going to need to be clear about what their policies are and what their stance is for their employees," he said.

But that could prove to be a challenge with laws differing by state and marijuana illegal under federal law.

"For employers, particularly near the borders, it's confusing for them as to what law should necessarily apply and to whom. Having two sets of rules for employees doing similar jobs, perhaps in two different offices is a challenge," said Daniel A. Schwartz, a partner at Shipman & Goodwin LLP, who's blogged about the issue.

"It used to be that any test positive was disqualifying for some employers, now some employers are digging a little deeper," Schwartz said.

Connecticut's medical marijuana law provides certain employment protections. Someone can't be denied employment solely based on their status as a qualifying medical marijuana patient. The law doesn't allow people to use or be under the influence of marijuana during work.

"First and foremost, the safety of our employees and customers is paramount," said Kerri Kemp, human resources director for Norwich Public Utilities.

The company, which has about 140 employees, all of whom are Connecticut residents, has a no-substance policy while employees are at work.

About half of the company's employees are subject to random drug testing because either they are commercial vehicle operators or they work directly with natural gas. That won't change if recreational marijuana is legalized, Kemp said.

"In terms of the rest of employees, it would be the same as with alcohol," Kemp said. "If there's reasonable suspicion, we will address that as per our union contract."

Connecticut is home to federal defense contractors Sikorsky, Pratt & Whitney and Electric Boat, which are bound by the federal Drug-Free Workplace Act. The law requires them to agree to provide a drug-free workplace in order to receive contracts from the federal government. EB spokeswoman Liz Power declined to comment for this story.

These companies and their suppliers in the state are already having a difficult time finding employees, said Tony Sheridan, president and CEO of the Chamber of Commerce of Eastern Connecticut.

"The state legislature needs to be cautious about how they go about this," Sheridan said. "They inadvertently could create a problem for some of these companies doing business with the federal government."

Before any legislation is enacted, there needs to be a "serious, deep conversation" about the implications, particularly on the workforce, Sheridan said.

The full chamber is expected to discuss the issue in January.

"I don't see the chamber supporting it," he said. "The question is would we oppose it and for what reasons."

Mark Soycher, human resource counsel for the Connecticut Business & Industry Association, said he's heard some employers say that they're no longer going to disqualify applicants who test positive for marijuana because they're concerned they could potentially eliminate viable candidates or wouldn't able to find enough employees.

Schwartz has heard something similar. "As one employer said to me, if I had to disqualify everyone who tested positive for marijuana, I'm going to have a very small applicant pool for the type of jobs I'm seeking," he said.

Connecticut has a law that governs workplace drug testing. Pre-employment testing is relative easy to do, Soycher said, but current employees can only be tested if an employer has "reasonable suspicion" that the person is under the influence based on "observed demeanor, behavior or performance problems." If it's a job that's classified by the state Department of Labor as "safety sensitive" or "high risk" then the employer can do random testing, he said.

"The whole issue of recreational pot raises the specter of people regularly smoking as a social practice, and may call into question the viability of including marijuana as a forbidden substance in drug tests that are done," Soycher said.

Additionally, some drug tests show the presence of marijuana or chemicals associated with it for up to 30 days.

Soycher is also hearing from employers concerned about opioid and alcohol abuse not being properly addressed, and what implication legalizing recreational pot could have. He said he's received calls from employers, whose employees have come to work smelling of alcohol, asking if they can talk to the employee about it, that they're concerned the employee could be an alcoholic.

"Employers have anxiety about discussing these kinds of issues with their employees — substance abuse, mental health," Soycher said.

Schwartz said employers should keep in mind the law is still evolving, and to have some type of flexibility.

"What works for a landscaping company might not work for a bank or a construction company," Schwartz said.

j.bergman@theday.com

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