Minchella Law Blog

Can a Connecticut Employer Drug Test CURRENT Employees?

Yes, Connecticut employers may drug test their current employees, but not randomly unless the job is high-risk or safety sensitive.  And thank God, since one report finds that 1 out of every 10 employees comes to work high on marijuana.  Connecticut has a specific statute that allows employers to drug test current employees; only under certain circumstances and only if they comply with the statute. First, the employer must have “reasonable suspicion that the employee is under the influence of drugs or alcohol which adversely affects or could adversely affect such employee’s job performance.” There must be some “individualized suspicion” about the employee’s behavior, such as walking back and forth quickly without any purpose, coupled with getting into an argument, and acting unusually loud or aggressive. Often employers think that simply being involved in an accident at work justifies a drug test.  It doesn’t. There must be the “accident-plus” something else that supports reasonable suspicion, like blood-shot eyes, or smell of drugs or alcohol on the employee.  Then you can require a drug test.  No one can directly observe the employee take the urinalysis text, and it must be administered in accordance with a method approved by the Public Health Commissioner (chemistry stuff, that most drug-testing facilities know about). If the first test is positive, you must confirm it with a second independent test administered the same way.  And you must keep the results in the employee’s confidential medical file, not personnel file. Employees can sue under the law if they are harmed by an illegal urinalysis drug test.  At least one judge has held that an employee who underwent a non-urine drug test, and then was fired because he failed, COULD NOT SUE for wrongful termination. This is important because this Connecticut law only covers urinalysis tests, not hair follicle tests for example. This may mean you can do another type of test, like hair follicle, without complying with the statute and having reasonable suspicion.  But the less risky thing to do is to comply with the law and do the urinalysis test. This site and this one have information comparing urinalysis and hair tests for drug use.

Some employers, like those with employees in high-risk or safety sensitive jobs, can conduct random tests and do not need any reasonable suspicion of intoxication.

Connecticut allows medical use of marijuana, so talk to a lawyer before drug testing an employee who claims medical use of marijuana because it complicates the issue under disability laws. Connecticut law also provides medical marijuana users with some employment-related protections – BUT THIS DOESN’T MEAN YOU HAVE TO ALLOW MARIJUANA USE AT WORK – it means, for example, you cannot fire or discipline them just because they use medical marijuana.

MINCHELLA MUSINGS – Don’t knee jerk drug test an employee.  Have some specific facts to back up your suspicion, and then follow the law.

Anthony R. Minchella

Anthony R. Minchella

Tony represents Fortune 50 financial services companies, retail giants, and small and large specialty products companies in employment litigation, trade secret and non-competition litigation, and unfair trade practice issues. When acting as local counsel, Tony, an adjunct professor of law on Connecticut Civil Procedure at Quinnipiac Law School, helps lead counsel navigate the nuances of Connecticut state and federal court practice. Tony graduated magna cum laude from Quinnipiac University School of Law. He passed the New Jersey, New York and Connecticut bar exams and then moved on to careers with large and small firms which led to his boutique litigation practice.

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