The use of recreational and medical marijuana is an evolving area of employment law, which can make things a bit tricky for employers trying to maintain safe working conditions.
In light of the rapidly changing laws, a lot of folks are probably wondering: Can we fire an employee who is impaired at work?
Here’s how a Connecticut appeals court answered that question.
New hire fails to disclose medical marijuana use
In 2018, Alyssa Bartolotta was hired to work as a preschool teaching assistant at a facility in Connecticut. She suffered from epilepsy her entire life but did not disclose her condition when she was hired. Nor did she disclose that she had a prescription for – and used – medical marijuana.
At the time of hire, the employer provided Bartolotta with a copy of its handbook. Among other things, the handbook included a policy that prohibited working under the influence of alcohol or drugs to ensure workplace safety and integrity.
Bartolotta signed an acknowledgment of the employer’s drug-free workplace policy. In part, it read: “I have been informed that violations of the Drug-Free Workplace Policy will result in disciplinary action up to and including termination.”
Slip of the tongue – or a bigger safety concern?
On Jan. 2, 2019, a teacher who worked across the hall overheard Bartolotta call a child by the wrong name.
Afterward, Bartolotta purportedly told the teacher that she was “just out of it” because she “use[d] medical marijuana” and that “her head [was] just not right from it yet.”
The teacher testified that she was concerned about Bartolotta being “in the classroom with the children because she was still feeling the effects of the marijuana” so she reported the incident to her supervisor.
As part of the employer’s investigation, Bartolotta met with the education manager and HR. There, Bartolotta disclosed that she used medical marijuana to treat her epilepsy.
She also admitted that she reported to work after “a possibility [that she] may have used too much [medical marijuana,] more than prescribed.”
Notes from the meeting showed that Bartolotta was asked: “Do you understand that you cannot show up to work impaired because the children require full attention and if you are impaired you are unable to respond quickly to their needs?”
Bartolotta said she understood that and she also “thought [the marijuana] would have worn off by then.”
The employer suspended Bartolotta without pay and directed her to submit to a drug test. A week passed before she took the test. It came back negative for marijuana.
Meanwhile, the employer terminated Bartolotta’s employment on the basis that she admitted that she was under the influence of marijuana at work in violation of the employer’s drug-free policy as outlined in the employee handbook.
Bartolotta filed a lawsuit in state court, alleging violations of Connecticut’s Palliative Use of Marijuana Act (PUMA).
The trial court granted the employer’s motion for summary judgment, and Bartolotta appealed.
Did company violate state law?
To state a valid claim under PUMA, Bartolotta had to show that her employer terminated her solely because she had a prescription for medical marijuana, the court explained.
Bartolotta could not make that showing, as the notes from the investigation showed that she admitted to being impaired at work.
Importantly, the statute specifically says: “Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours,” the appeals court pointed out.
The employer clearly stated Bartolotta’s employment was terminated because she reported to work “in an impaired state.”
In the court’s view, there was no genuine issue to suggest the employer violated PUMA. Thus, it affirmed the ruling in the employer’s favor.
2 key takeaways
First things first: This ruling is state-specific, focusing on a Connecticut law.
When it comes to rapidly changing marijuana legislation, it’s important to stay on top of state law changes. (If you missed it, California recently expanded protections for marijuana users.)
Employment law attorney Todd Wulffson told HRMorning that state marijuana laws vary widely, and not keeping up with state laws is a common mistake that many companies make when it comes to recreational and medical marijuana.
And second, despite the state-specific nature of medical marijuana challenges, this ruling generally shows that courts can be supportive of employers’ needs to maintain a safe workplace.
As a general best practice, a clear policy specifically addressing workplace impairment should be included in your employee handbook.
And take a page out of this employer’s playbook: As part of your onboarding process, have new employees sign a form acknowledging that they received a copy of the policy and that they understand the potential consequences of violations.
Bartolotta v. Hum. Res. Agency of New Britain, Inc., No. AC 46091, 2024 Conn. App. LEXIS 65 (Conn. App. Ct. 3/19/24).
