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The Supreme Court of Connecticut recently held, by a unanimous decision, that termination was not the only appropriate disciplinary action for a public employee who had been caught smoking marijuana during working hours. In so doing, the court found that despite the state's "explicit, well-defined and dominant public policy against the possession and recreational use of marijuana in the workplace[,]" discipline less than termination could be appropriate (State of Connecticut v. Connecticut Employees Union Independent, No. 19590, Supreme Court of Connecticut (Aug. 30)).The case involved Gregory Linhoff, a 15-year employee of the University of Connecticut Health Center. In March 2012, the Health Center's police came upon Linhoff smoking marijuana in a van belonging to the state during his night shift. When the officer questioned him, Linhoff turned over two bags of marijuana that he had in his possession. Linhoff was arrested (the criminal charges were dismissed), and the state terminated his employment.In so doing, the state noted that he had violated numerous workplace policies, including the health center's drug-free workplace policy, and had shown himself to be untrustworthy to perform his duties, given that he was mostly unsupervised at work and had access to all areas of the Health Center.Linhoff's union, the Connecticut Employees Union Independent, contested his discharge, and, pursuant to the operative collective bargaining agreement, the parties arbitrated the matter.The arbitrator found that termination was too harsh a punishment under the circumstances and was not mandated by the heath center's drug-free workplace policy. In rendering the decision, the arbitrator also noted mitigating factors, such as Linhoff's testimony that he had been taking the marijuana as part of his therapy for anxiety and depression.The arbitrator nevertheless concluded that Linhoff had engaged in substantial misconduct, but found that a more proportional punishment was six months of unpaid suspension and random drug testing upon his return to work.The state sought to vacate the arbitrator's award and reinstate the termination, and the trial court agreed with the state, finding that in light of the "defined public policy" against marijuana in the workplace, termination was the appropriate course of action.In reversing the trial court's decision, the Supreme Court of Connecticut began its analysis by observing the high-level of deference typically afforded to arbitration awards. The court noted, however, that such awards could be overturned where they violated a strong public policy.The court found that Connecticut has a strong public policy against recreational marijuana use in the workplace, but that the arbitrator's decision did not run afoul of it. In so reasoning, the court applied the Burr Road factors—used to analyze whether an arbitration award that reinstates an employee violates public policy—to conclude that the award did not violate Connecticut's public policy against marijuana use in the workplace.Specifically, the court found that (1) discipline other than termination did not necessarily offend the state's public policy; (2) Linhoff's return to employment would not likely implicate the public's safety; (3) his conduct was completely inappropriate, although not necessarily egregious; and (4) Linhoff was not incorrigible. The court concluded its opinion by again noting that "judicial second-guessing of arbitral awards … is very uncommon and is reserved for extraordinary circumstances, even when drug or alcohol related violations are at issue."
This case is notable in that it offered insights into the Supreme Court of Connecticut's reasoning with regard to the evolving issue of marijuana use in the workplace. It is important to note that given the procedural posture of this case (i.e., the court reviewed an arbitration award) it only provides limited guidance concerning how employers should handle employees caught using marijuana in the workplace.Given the court's emphasis on the state's strong public policy against recreational marijuana use in the workplace, disciplining employees for violating anti-drug policies (up to and including termination) remains permissible.Note that this case does not address the thorny issue of marijuana use in the workplace where an employee is a marijuana card holder under Connecticut law.Kelly M. Cardin and Marc L. Zaken are attorneys with Ogletree Deakins in Stamford, Conn. © Ogletree Deakins. All rights reserved. Reposted with permission.
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