Connecticut Act Not Preempted by Federal Law

A Connecticut act that protects applicants and employees who are prescribed medical marijuana is not preempted by federal law according to a recent federal district court ruling.   The opinion is  Noffsinger v. SSC Niantic Opeprating Co., LLC, No. 3:16-cv-01938 (JAM) )D. Conn. Aug. 8, 2017).  In the opinion, Judge Jeffrey Meyer held that federal law does not preempt the Connecticut Palliative Use of Marijuana Act (PUMA), which prohibits employers from firing or refusing to hire employees who use medical marijuana.  Over at the National Law Review, lawyer Sara J. Robertson of Polsinelli PC gives a good rundown of the case.

Plaintiff Katelin Noffsinger was prescribed a daily dose of Marinol (capsulated synthetic marijuana) to treat symptoms arising from post-traumatic stress disorder, which she took only at night. Bride Brook, a nursing home, extended an offer of employment to Noffsinger, contingent upon passage of a drug test. Noffsinger disclosed her Marinol prescription to Bride Brook, and, as anticipated, tested positive for marijuana metabolites. Thereafter, Bride Brook rescinded her job offer. Noffsinger filed a lawsuit against Bride Brook alleging a violation of PUMA’s anti-discrimination provision.

[The court . . . held that PUMA did not create an “actual conflict” with any of the three federal statutes. First, the [Controlled Substances Act] did not preempt PUMA because the CSA does not prohibit employers from hiring or employing individuals who use illegal drugs. Second, the ADA did not preempt PUMA because, while the ADA allows employers to prohibit the illegal use of drugs in the workplace, PUMA does not authorize individuals to use marijuana while at work, and the ADA does not address use of drugs outside of the workplace. Finally, the FDCA did not preempt PUMA because the FDCA does not regulate employment, but PUMA does.

The Noffsinger decision creates further complications for employers that conduct drug testing for marijuana, particularly in states that have enacted laws that protect medical marijuana patients from adverse employment actions based solely on their use of medical marijuana. While the Noffsinger decision is not binding on other courts, courts in other jurisdictions with similar medical marijuana statutes might follow its lead. Therefore, employers may wish to reevaluate policies that either automatically deny employment to, or require termination of, an employee following a positive drug test resulting from the employee’s use of prescribed medical marijuana. 

--Victoria Olivarez