Can an Employee Openly Smoke Pot at Work and Not Get Fired?

Written by Robert G. Brody and Katherine M. Bogard on June 16, 2016

The Connecticut Supreme is about to decide if an employee can smoke pot on the job and not get fired. On March 31, 2016, the Supreme Court heard oral arguments on this point in State of Connecticut v. Connecticut Employees Union Independent et. al.

The case stems from Gregory Linhoff’s, a former maintenance worker at the University of Connecticut Health Center, use of marijuana at work. Mr. Linhoff suffered from depression and anxiety in 2012, and began smoking marijuana at work to alleviate his stress.  He scheduled an appointment with a psychiatrist but in the meantime a police officer at the UConn Health Center received a tip that Linhoff and a co-worker were smoking marijuana at work.  On March 7, 2012, the Officer observed Linhoff smoking marijuana in his state issued van.  The officer arrested Linhoff for possession of less than an ounce of marijuana.  Linhoff then completed an employee assistance plan but was ultimately terminated by the State.  He was given the following reason for his termination: he was observed smoking marijuana in a state vehicle while at work, that this was a violation of his employer’s alcohol and drug-free workplace policy, and it was considered a serious offense.

Linhoff’s union filed a grievance and the case proceeded to arbitration. The arbitrator found Linhoff engaged in misconduct by possessing and using marijuana while at work.  He said that the state’s rules of conduct and its drug and alcohol policy allow for termination of first-time offenders but does not require it.  However, he also held that Linhoff was a long time employee and his actions did not give rise to concern that his return to work would create a danger or he would be unable to function as a productive employee.  The arbitrator therefore concluded Linhoff was not terminated for just cause.

The State challenged the ruling, arguing it was contrary to the public policy of forbidding illegal drug use by on-duty State workers. Hartford Superior Court Judge Antonio Robaina agreed and vacated the arbitrator’s ruling.  Linhoff’s lawyer appealed and the Supreme Court agreed to hear the case.

Last May, the Supreme Court clarified the guidelines for setting aside arbitrator’s rulings in Burr Road Operating Co. II v. New England Health Care Employees Union, District 1199. There, the Supreme Court held that when determining whether the termination of employment was necessary to vindicate the public policies at issue, the applicable court should focus on four factors: (1) any guidance offered by the relevant statutes, regulations, and other embodiments of the public policy at issue; (2) whether the employment at issue implicates public safety or the public trust; (3) the relative egregiousness of the grievant’s conduct; and (4) whether the grievant is incorrigible.  Linhoff believes these factors support overturning the Superior Court’s Judge’s reversal of the arbitrator’s award.  This would mean he would get his job back.

Linhoff argues that the arbitration award does not violate an explicit and well-defined public policy. Specifically, he argues that “Connecticut does not demand that employees who have been found to have used marijuana while at work must be terminated.  Where an employer has a policy prohibiting use or possession of drugs at the workplace and a violation of the rule could result in termination, the public policy will not mandate that termination is the only appropriate sanction.”

This is a decision to watch as it may have serious implications for employers in the private sector as well.

Brody and Associates regularly advises its clients on matters involving arbitration and other areas of alternative dispute resolution. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.

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About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Kate Bogard is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Learn More