Connecticut Update: Recreational Marijuana, Captive Audience Meetings, and Leave Notices Requirements Take Effect July 1, 2022

The Connecticut legislature has been busy in 2021 and 2022. Approximately twelve months ago, it passed legislation effectively legalizing recreational marijuana under Connecticut state law. Very recently, it amended Connecticut’s employee free speech statute to, among other things, prohibit employers from convening what organized labor often refers to as “captive audience meetings” with employees to address unionization efforts. Also, effective January 1, 2022, many employees became eligible for Connecticut Paid Family and Medical Leave benefits, and the legislature amended the Connecticut Family and Medical Leave Act (CTFMLA) to apply to almost all private sector Connecticut employers.

Each of these laws contains provisions that are effective on July 1, 2022, and may require policy revisions, or other actions by employers to promote compliance. Possible action items may include: (1) implementing compliant drug-free workplace policies, to prohibit off-duty recreational marijuana use by employees; (2) reviewing policies and practices, including social media policies, in light of amendments to Connecticut’s free speech statute and related captive audience ban; and (3) circulating notices of rights under the CTFMLA and Connecticut Paid Leave Act (CTPL).

Off-Duty Recreational Marijuana Use by Employees

Effective July 1, 2021, recreational marijuana use was essentially legalized under Connecticut law pursuant to Public Act No. 21-1, “An Act Concerning Responsible and Equitable Regulation of Adult-Use Cannabis.” Effective July 1, 2022, the law prohibits many employers from disciplining employees, or denying employment to applicants for off-duty recreational marijuana use, as long as the employee is not intoxicated while at work.

The law identifies several classes of “exempted employers” that are not subject to the restrictions. Exempt employers include certain employers in the construction, manufacturing, and transportation industries. The law similarly identifies classes of “exempt employees” who are not subject to job protections, including employees of an “exempted employer,” as well as firefighters, emergency medical technicians, police officers, employees in positions requiring certain commercial driver’s licenses, and other positions “[w]ith the potential to adversely impact the health or safety of employees or members of the public, in the determination of the employer.”

Assuming the above exemptions do not apply, the law still allows an employer to implement a policy restricting off-duty recreational use of marijuana by current employees. The policy must be “[i]n writing in either physical or electronic form” and “made available to each employee prior to the enactment of such policy.” The law also requires employers to “make any such policy available to each prospective employee at the time the employer makes an offer or conditional offer of employment to the prospective employee.”

Employers may want to review their existing drug-free workplace policies and practices to ensure they comply with the new requirements. Nonexempted employers that wish to prohibit off-duty recreational marijuana use by employees holding nonexempted positions may want to consider implementing and circulating a compliant policy. Employers must also continue to comply with Connecticut’s Palliative Use of Marijuana Act, which provides job protections to qualified users of medical marijuana.

Captive Audience Meetings and Employee Free Speech

Effective July 1, 2022, Connecticut employers will be subject to Public Act No. 22-24, “An Act Protecting Employee Freedom of Speech and Conscience.” The new legislation amends Connecticut’s employee free speech statute, Conn. Gen. Stat. Section 31-51q, by placing limitations on an employer’s ability to speak directly with its employees.

Most notably, the law makes it unlawful for employers to require employees to attend meetings to discuss religious or political matters. The legislation defines “[p]olitical matters” to include “the decision to join or support any … labor organization.”

The law also expands the parameters under which a civil action may be commenced. Under Section 31-51q of the Connecticut General Statutes, employees may sue for damages when they are subject to “discipline or discharge” for exercising free speech rights under the First Amendment of the U.S. Constitution and the Connecticut equivalent—subject to certain exceptions. The amendments expand that right of action, permitting a civil action upon the “threat[]” of discipline or discharge, potentially regardless of whether those threats result in adverse employment action.

The amendments will have an immediate impact on union organizing efforts in Connecticut. Among other things, employers in Connecticut may want to: (1) weigh the risks of engaging in mandatory meetings; and (2) consider how to limit exposure to a potential lawsuit alleging a violation of Section 31-51q. Employers may want to also review their policies and practices, including social media policies or other work rules, to analyze whether they could be interpreted as threatening to employees engaging in constitutionally protected speech or otherwise expose a business to liability under Section 31-51q.

Required Notices Under the CTFMLA

Effective January 1, 2022, the CTFMLA was amended to apply to most private sector employers with one or more employees in Connecticut. The amended CTFMLA provides employees with up to twelve weeks of unpaid, job protected leave for a variety of reasons, including an employee’s own serious health condition, and the potential for additional leave for pregnancy- and military-related absences. Also effective January 1, 2022, paid leave benefits under the CTPL became available to most private sector employees in Connecticut for absences covered by the CTFMLA.

Effective July 1, 2022, employers are required to provide employees with written notice of the following: (1) of the entitlement to CTFMLA leave, and the terms under which such leave may be used; (2) of the opportunity to file a claim for CTPL benefits compensation from the Connecticut Paid Leave Authority; (3) that retaliation against the employee for requesting, applying for, or using family and medical leave is prohibited; and (4) that the employee has a right to file a complaint with the Connecticut labor commissioner for any violation of rights under the CTPL or CTFMLA.

The written notice must be provided “at the time of hiring, and annually thereafter.” The Connecticut Department of Labor recently published a prototype notice, but employers may also circulate a compliant CTFMLA policy to comply with the obligation.

Employers that are subject to the CTFMLA may want to consider reviewing their current policies and practices, and also consider implementing a compliant CTFMLA policy. Employers may also want to consider implementing procedures to comply with the new notice requirements.

Additional information on state marijuana laws and state and local paid sick leave requirements is available in the firm’s OD Comply: Marijuana and OD Comply: State Leaves subscription materials, which are updated and provided to OD Comply subscribers as the law changes.