14

July, 2021

Four New State Laws Require Actions by Connecticut Employers to Achieve Compliance

By Alexandra Lapes and Tracey Levy

After a very quiet 2020, this past legislative season has brought a series of new mandates for private employers in Connecticut.  These include new obligations regarding reasonable accommodations for breastfeeding employees, extended time off to vote, new parameters for pay equity, and updates to cannabis workplace protections, as Connecticut has joined New York and New Jersey to legalize recreational cannabis this year.

Breastfeeding Workers Receive Additional Protections
Beginning October 1, 2021, employees are entitled to enhanced protections when expressing breast milk in the workplace.  Existing law required employers to make reasonable efforts to provide a room or other location in close to proximity to an employee’s work area to breastfeed.  Amendments to the law dictate specifics about the type of room that must be made available.  Employers must ensure the room is: (1) free from intrusion and shielded from the public while the employee uses the room, (2) situated next to or near a refrigerator or other employee-provided portable cold storage unit for the employee to store the milk, and (3) includes access to an electric outlet, provided that there is no undue hardship for the employer.

Unpaid Time Off to Vote
If requested at least two days in advance, employers must provide all employees with two hours of unpaid time off to vote in any state election or, if the employee is an elector, for any special election of a legislative representative at the federal or state level.  The law took effect immediately upon its passage but is scheduled to sunset on June 30, 2024.

Pay Equity and Transparency
Connecticut has revised its equal pay act to prohibit pay differences between sexes for comparable work (previously the standard was “equal” work) on a job.   Employers must evaluate comparable work as a composite of skill, effort, responsibility, and whether performed under similar working conditions.  Differentials in pay may be lawful if the employer can demonstrate they are based on bona fide factors other than sex, including but not limited to, education, training, credentials, skill, geographic location, or experience.

The new law, which takes effect October 1, 2021, also imposes new pay transparency obligations that require employers to disclose to applicants and employees the “wage range” for the position they are applying to or occupy.  For job applicants, the wage range must be disclosed upon the earliest of the applicant’s request or prior to or at the time a job offer is made that includes compensation.  For employees, the wage range must be disclosed upon hire, a change in the employee’s position, or the employee’s first request.

The law defines “wage range” as the range of wages an employer anticipates relying on when setting wages for a position, and the reference may include any applicable pay scale, range of wages previously determined for the position, the actual range of wages for current employees holding comparable positions, or the employer’s budgeted amount for the position.  The law provides a two-year limitation period for actions against employers who violate the new requirements and provides for various remedies and damages.

Legalization of Recreational Cannabis
Connecticut has now become the 19th state to legalize recreational cannabis use for adults aged 21 and over.  Effective July 1, 2022, employers in Connecticut may not prohibit the off-work use of cannabis or take adverse action against an employee or potential employee for use of cannabis prior to applying for, while working for an employer, or based on a positive THC test, except under limited circumstances and only with advance written notice.

As in New York and New Jersey, the Connecticut law makes clear that employers are not required to make accommodations for an employee to use cannabis while performing job duties, and employers can prohibit employees from possessing or consuming cannabis while at work.  The law also allows employers to take adverse action against employees who are impaired at work, upon (1) reasonable suspicion of an employee’s use of cannabis while engaged in the performance of the employee’s work responsibilities at the workplace or on-call, or (2) upon determining that an employee manifests specific, articulable symptoms of drug impairment while working or on-call that decrease or lessen the employee’s performance of the employees’ job duties.

Employers can also drug test employees or applicants and discipline or terminate an employee, or rescind a conditional offer of employment, based on a positive drug test result in certain circumstances.  As a threshold matter, the employer must have an established written policy that prohibits possession, use or other consumption of cannabis by an employee, and the policy must be made available to each employee (either physically or electronically), prior to the enactment of the drug testing program.  For job applicants, the drug testing policy must be made available to each prospective employee at the time the employer makes an offer of conditional employment.  Without this advance written notice, the employer cannot take any actions with respect to an employee’s use or possession of cannabis products outside the workplace.

Even if the employer has provided appropriate notice, however, employers cannot discipline employees or applicants based solely on a positive drug test.  Rather, they additionally need to show that:

  • failing to discipline/revoke an offer would cause the employer to lose a federal contract,
  • the employer reasonably believes the employee is engaged in cannabis use while performing the employee’s work duties, or
  • the employee manifests specific, articulable symptoms of drug impairment while working that decrease or lesson the employee’s performance.

An individual aggrieved by an employer’s violation of these provisions has 90 days to file a claim in state court.  However, a cause of action will not be implied in several circumstances, including but not limited to, if the employer had a good faith belief that an employee used or possessed cannabis while performing work, in violation of an employer’s workplace policy.

Takeaways
These new laws require updating employment policies.  Updates to comply with unpaid voting leave need to be put in place immediately, while employers have until October 1 to update their policies and practices with regard to breastfeeding accommodations and pay transparency.  Employers may want to undertake a review of their compensation practices to confirm they will meet the new “comparable work” standard.  Finally, employers have until next July 1 to develop and distribute written policies with regard to drug testing and maintaining a drug free workplace if they wish to police cannabis usage in the workplace.

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7

March, 2021

NJ Employers Need Special Expert’s Sign-Off Before Disciplining Based on a Positive Test for Cannabis

By Alexandra Lapes

On February 22, 2021, after nearly three years of deliberation, New Jersey became the 15th state to fully legalize cannabis for recreational and medical use.  That legalization process includes new employment law protections to users of cannabis products in certain circumstances and places significant constraints on drug testing of applicants and employees.

How We Got Here

During the November election, 67% of New Jersey voters had approved a ballot measure legalizing adult-use cannabis and a state constitutional amendment was adopted on January 1, 2021, pending regulation by the Cannabis Regulatory Commission to establish a regulated marketplace for cultivation, distribution, and the sale of cannabis.  However, lawmakers then discovered discrepancies in the legislation that were interpreted as legalizing cannabis for children and did not sign the cannabis measures into law until they reached an agreement on a clean-up bill.  In total, three adult-use cannabis reform measures were signed into law, namely, the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (“NJCREAMMA” or “legalization bill”), the decriminalizing marijuana and hashish possession bill (“decriminalization bill”), and the “clean-up bill,” clarifying cannabis use and possession penalties for individuals younger than 21 years old.

The decriminalization provisions of the cannabis bills took effect immediately upon signature.  The provisions affecting the employment relationship are not effective until the Cannabis Regulatory Commission provides rules and regulations, which is mandated within 180 days after the bill was signed into law, or within 45 days of appointment of all members of the commission, whichever is later.

Provides a New Protected Class

The NJCREAMMA prohibits employers from refusing to hire any person, or discharging, or taking any adverse action against an employee, because they use cannabis products, and explicitly protects employees from being subject to any adverse employment action solely because they have tested positive for cannabinoid metabolites.*  This is a change from prior versions of the bill, which had explicitly permitted employers to take adverse action against an employee for use of cannabis or cannabis items in certain circumstances.  While the new law thus creates a protected class for cannabis users in New Jersey, employers are still permitted to maintain drug and alcohol-free workplaces and policies, and employers can discipline employees who engage in some other prohibited conduct under the law, such as being under the influence, possessing, selling, or transporting cannabis while in the workplace.

Drug Testing Requirements

The NJCREAMMA does not require employers to drug test employees who they believe have engaged in prohibited conduct under the employer’s policy.  Instead, the law explicitly permits employers to drug test:

  • upon reasonable suspicion of an employee’s usage of a cannabis item while engaged in the performance of the employee’s work responsibilities;
  • upon finding any observable signs of intoxication related to usage of a cannabis item;
  • as random screening;
  • as pre-employment screening;
  • as regular screening of current employees to determine use during work hours; or
  • following a work-related accident subject to investigation by the employer.

The employer may then use the results of that drug test when determining the appropriate employment action concerning the employee, provided the drug test satisfies two prescribed requirements, specifically, that:

1. it is conducted with scientifically reliable objective testing methods and procedures (i.e. testing blood, urine, or saliva); and

2. a physical evaluation is conducted by a “Workplace Impairment Recognition Expert” (WIRE).

A WIRE is an individual with the necessary certification to opine on the employee’s state of impairment or lack of, related to the usage of cannabis.  To obtain a WIRE certification, an individual must be trained to detect and identify an employee’s use of cannabis items or other intoxicating substances and assist in the investigation of workplace accidents.  The Cannabis Regulatory Commission is tasked with creating minimum standards and courses of study available for full or part-time employees or others contracted to provide services on behalf of the employer, to become certified as a WIRE.

Drug and Alcohol-Free Workplaces Permitted

The NJCREAMMA states that employers are not required to amend, repeal, or otherwise affect an employer’s policy and efforts to maintain a drug and alcohol-free workplace, and employers are expressly permitted to implement and continue to enforce policies that prohibit the use, possession, or being under the influence of cannabis while in the workplace or during work hours. The NJCREAMMA also does not require an employer to permit or accommodate any personal use of cannabis activities in the workplace, and employers may take adverse employment action against any individual found to be engaging in any prohibited conduct under a workplace policy.  In addition, if the requirements of the NJCREAMMA would result in a provable adverse impact on an employer who is subject to a federal contract, then the employer may revise its employee prohibitions consist with federal law, rule, and regulations.

Questions Left Unanswered

The law is voluminous and leaves many questions unanswered about the practical implications of these new cannabis protections.  For example, if an employer suspects someone of coming to work with their ability impaired, must the employer send the employee for a drug test before taking further responsive action, or can the employer opt out of drug testing?  If the employer opts not to drug test, can it discipline or fire the person based on perceived impairment?

Clearly, if an employer does drug test, the WIRE certification is required.  However, there appear to be two competing provisions in the statute on whether a drug test is required before an employer can take any adverse employment action against an employee who comes to work apparently under the influence of cannabis.  One provision indicates that an employer is still permitted to maintain a drug and alcohol free workplace and can have policies that prohibit use of cannabis items or intoxication by employees during work hours, while another provision suggests that the WIRE certification process is not only intended for purposes of determining the reliability of a positive drug test but also to balance employers’ interest in maintaining a drug and alcohol free workplace with employees’ interest in not being improperly disciplined or discharged.

If the latter interpretation applies, then the law holds employers to a higher proof standard before taking adverse action against a cannabis user than in the event someone reports to work under the influence of alcohol.   If the former applies, then the greater protection for cannabis users only kicks in when an employer chooses to administer a drug test to an individual who is believed to be impaired, and the WIRE process essentially is meant to discourage employers from relying solely on drug tests.  Employers will need to await regulatory guidance to clarify the circumstances under which an employer needs to involve a WIRE.

Employers should review and revise their drug testing policies and procedures now to ensure they do not include any outright bans on cannabis use that are inconsistent with the NJCREAMMA and be alert for further regulations on certification standards set by the Cannabis Regulatory Commission, which may require further updates to employer policies and practices.

*Editor’s note: This article was updated 3/15/21 to correct a misstatement regarding the scope of the protection against adverse action.

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