Employers in many jurisdictions across the country are dealing with laws that prohibit adverse actions against employees who use marijuana, whether for recreational or medicinal purposes, away from the workplace and during non-working hours. A recent appellate court decision in one of the more marijuana-friendly states, Connecticut, reassures employers that they do not have to allow employees to work while impaired by marijuana. 

In the case, Bartolotta v. Human Resources Agency of New Britian, Inc., a preschool teaching assistant had received the employer’s drug free workplace policy, which stated that working under the influence of drugs might result in termination of employment. After an epileptic seizure, the teaching assistant began taking medical marijuana, but she did not tell her employer about such use.

One day at school, the assistant referred to a student by an incorrect name in front of a teacher. The teacher asked the assistant if she was feeling badly, and the assistant admitted that she was a medical marijuana user and was impaired because of taking too much marijuana earlier in the day. The teacher reported this, and her observations of the assistant acting impaired during the preceding weeks, to the school. The school investigated, and during the investigation the assistant admitted to being impaired at work. Also, several witnesses informed the school that they saw the assistant behave in ways that are consistent with marijuana impairment. A week after the classroom incident, the school asked the assistant to take a marijuana test, which was negative.

Despite the negative test result, the school fired the assistant for being impaired by marijuana at work. The assistant sued, claiming that she was terminated because of her status as a medical marijuana user and for being disabled. The appellate court ruled in favor of the school, finding that the termination was based on the assistant’s admitted impairment during work hours.

The assistant also claimed that the school violated Connecticut’s drug testing law by performing a reasonable suspicion drug test in the absence of reasonable suspicion. The court rejected that claim, as well, noting that reasonable suspicion to require a drug test existed because the assistant had admitted to being impaired at work and multiple witnesses reported to the school that the assistant had shown signs of impairment at work.

This decision shows that, even as legal protections for marijuana users increase in some locations, employers can still enforce rules that prohibit employees from using or being impaired by marijuana while working.

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Photo of W. Brian Holladay W. Brian Holladay

Brian represents employers in all areas of labor and employment law. As co-chair of the Firm’s National Compliance team, he frequently advises employers on compliance with national, state, and local legal requirements. Brian’s areas of expertise include guiding employers through the disciplinary and…

Brian represents employers in all areas of labor and employment law. As co-chair of the Firm’s National Compliance team, he frequently advises employers on compliance with national, state, and local legal requirements. Brian’s areas of expertise include guiding employers through the disciplinary and termination process, leave and other accommodation requests, pay equity and transparency laws, and fair workweek legislation. Brian drafts employee handbooks and other policies, employment agreements, and restrictive covenants (such as non-compete, non-solicit, and confidentiality agreements).

Brian also defends employers in courts and administrative agencies across the country. Clients rely on Brian for the defense of employment-related claims such as Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and the National Labor Relations Act. Likewise, Brian assists with high-stakes government audits and investigations, including matters before the EEOC, DOL Wage and Hour Division, OFCCP, and OSHA.

Brian has earned a reputation for his expertise in issues related to the use of staffing agencies, including contracting issues, managing co-employment risk, and defending claims filed by staffing agency employees. He also litigates business torts and contract disputes.

Brian grew up in Knoxville, Tennessee. He received his bachelor’s degree, magna cum laude, from Furman University, where he was captain of the Track and Field team.  Prior to joining the firm, Brian served as a law clerk to the Honorable Gerrilyn G. Brill of the United States District Court for the Northern District of Georgia.

Brian earned his J.D., magna cum laude, from Duke University School of Law. He is now a Senior Lecturing Fellow at Duke University School of Law. He teaches a course called A Practitioner’s Guide to Employment Law.

In his free time, Brian enjoys coaching his children’s youth sports teams.