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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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