In a significant decision about workplace drug use, the Connecticut Appellate Court backed an employer's right to terminate a worker who was impaired on the job by medical marijuana. The decision also clarified the factual basis an employer must possess to justify ordering a drug test based on suspicion of impairment.

In Bartolotta v. Human Resources of New Britain, Inc., AC 46091 (Conn. App. Ct. Mar. 19, 2024), the court upheld the grant of summary judgment to an employer that was sued for allegedly violating Connecticut's Palliative Use of Marijuana Act (PUMA) and Urinalysis Drug Testing Statute. The decision marks the first time the Appellate Court has reviewed the merits of a private lawsuit under PUMA since such a cause of action was recognized by the Connecticut District Court in Noffsinger v. SSC Niantic Operating Company, LLC, 338 F. Supp. 3d 78 (2018). The Appellate Court's decision provides helpful guidance about what circumstances can justify reasonable suspicion drug testing under Connecticut law.

In the Bartolotta case, the defendant employed the plaintiff as a teaching assistant. When hired, the plaintiff held a prescribed medical marijuana card. The employer maintained written policies that explicitly prohibited employees from working while under the influence of any drug or alcohol.¹ The plaintiff did not disclose her use of medical marijuana.

On January 2, 2019, a teacher witnessed the plaintiff call a child by the wrong name. Confronted, the plaintiff said she was "just out of it," told the teacher she uses medical marijuana and acknowledged she was currently under its influence, saying "her head is just not right from it yet." Concerned for the welfare of the children, the teacher reported these facts to her supervisor. The defendant initiated an investigation, during which the plaintiff disclosed for the first time that she used medical marijuana to treat an underlying medical condition. She acknowledged that she had reported to work despite ingesting too much medical marijuana. The defendant suspended the plaintiff without pay and directed her to submit to a drug test, which came back negative for marijuana. Notably, a week had elapsed between the date of the incident and the date of the test.

Based upon the investigation, the defendant terminated the plaintiff's employment because she had admittedly been under the influence of marijuana at work, violating the terms of the drug and alcohol policy in the employee handbook.

The plaintiff sued the defendant alleging, among other things, violation of the PUMA and violation of the drug-testing restrictions of Connecticut General Statutes § 31-51x. The defendant sought and the trial court granted summary judgment, finding that the plaintiff failed to produce any evidence that the defendant had terminated her solely for being prescribed medical marijuana and that the defendant in fact did have reasonable suspicion to justify a drug test under the statute. On appeal the Appellate Court affirmed the trial court's grant of summary judgment.

Reaffirming Employer's Rights Under PUMA

The Appellate Court's decision clearly supports an employer's right to prohibit the use of marijuana in the workplace, even if the individuals affected have been certified to use medical marijuana under state law. The court emphasized the narrowness of claims that employees can make under PUMA: to prevail, a plaintiff must show that the employer terminated them solely because the employee had a prescription for medical marijuana.

In this instance, the plaintiff could not establish termination solely based on her status as a medical marijuana patient under PUMA since the investigation showed the plaintiff had admitted to being under the influence while at work and acknowledged that her conduct placed children under her care at risk. The court also noted that the employer had already suspended the plaintiff for this behavior before it was made aware of her status as a medical marijuana user. The decision may therefore serve as a helpful touchpoint on proactive steps employers are permitted to take to maintain a safe workplace even in jurisdictions where medical marijuana use is permitted by state law.

Reasonable Suspicion Standard for Testing

The Appellate Court's decision also provides helpful guidance about the meaning of the "reasonable suspicion" requirement of Connecticut's statutory limits on the circumstances under which employers can require urinalysis testing for drugs.

Connecticut General Statutes § 31-51x permits employers to require drug tests only if there is a reasonable suspicion of impairment affecting job performance. As the term "reasonable suspicion" is not specifically defined in the statute or associated regulations, the court in Bartolotta took the opportunity to review existing precedent and helpfully outline the appropriate standard.

Following the suggestion in a 1998 Connecticut Supreme Court case that the reasonable suspicion standard should align with the reasonable suspicion requirements of Fourth Amendment jurisprudence, the Appellate Court described the reasonable suspicion standard for drug testing as akin to that applied by police officers for searches and seizures. To have reasonable suspicion, the court said, requires that the employer have specific, articulable facts that would lead an objective reasonable person having such information to reach the same level of suspicion.

In the case at hand, the Appellate Court found that the investigation provided an adequate foundation for the defendant reasonably to conclude that the plaintiff had been impaired on the job, even though the drug test was requested approximately a week after the reported incident. The court said objective evidence confirmed the following: (1) the plaintiff had been observed by at least two witnesses acting "forgetful, droopy, and unsteady on her feet" during several weeks prior to the January 2, 2019 incident; (2) the plaintiff specifically admitted medical marijuana use to a colleague on that date and during the resulting investigation; (3) the plaintiff specifically admitted to using medical marijuana on a nightly basis and said she had consumed "too much" the night before the incident; (4) the plaintiff acknowledged that she had "messed up." Together, these pieces of evidence provided the employer with the level of reasonable suspicion necessary under the statute to justify its requirement that the plaintiff submit to a drug test.

The court's analysis underscores the challenge that employers face day-to-day when seeking to enforce reasonable drug testing policies in the workplace. The decision to mandate a reasonable suspicion drug test will necessarily be fact-specific and require employers to assess numerous sources of evidence to make the appropriate decision.

In light of this new guidance, employers that utilize reasonable suspicion drug testing are encouraged to review and assess current practices to ensure that the individuals responsible for making the assessment have a clear understanding of the objective standards to be applied and the importance of properly documenting the basis for the decision.

Posted: April 3, 2024

¹ The timeframe at issue predates recent legislation expanding protections for marijuana users in the workplace, including specific requirements for written policies if marijuana is to be included in the panel for an employment-related drug test. See Elizabeth McKenna and Dale Deitchler, Connecticut Legalizes Recreational Marijuana, Will Allow Employers to Continue Prohibiting Recreational Marijuana Use, Littler Insight (July 19, 2021).