Thursday, September 27, 2018
Medical marijuana users in Connecticut now receive extended employment-related protections under the state’s medical marijuana law as a federal court rejects an argument that the state laws conflict with federal laws and are therefore preempted. Dale L. Deitchler and Elizabeth R. McKenna, employment lawyers with national firm Littler Mendelson, report:
A Connecticut federal court has issued another decision in the case of Noffsinger v. SSC Niantic Operating Company LLC, further expanding protections to individuals who are qualified under Connecticut's Palliative Use of Marijuana Act (PUMA) to use marijuana. . . . [T]he parties filed cross-motions for summary judgment. These motions presented the court with another opportunity to address the extent to which PUMA protects qualified medicinal marijuana users—even though marijuana remains illegal as a matter of federal law. On September 5, 2018, the court granted partial summary judgment in the plaintiff's favor and concluded that she had successfully asserted a PUMA discrimination claim, and discussed the damages available. Significantly, the court considered and rejected additional arguments that federal/state law conflicts preempted enforcement of the Connecticut law, concluding that state law can co-exist with federal laws criminalizing marijuana use.
In an earlier decision, known as Noffsinger I, the Connecticut federal court held, “that various federal laws prohibiting use and sale of marijuana do not prohibit employers from hiring individuals who use marijuana in compliance with state law.” According to Deitchler and McKenna,
The case involves claims brought by an applicant who accepted a job offer contingent on passing a drug test. Before taking the test, the plaintiff informed her potential employer she was qualified under PUMA to use marijuana to treat post-traumatic stress disorder (PTSD). The plaintiff reportedly used marijuana "in the evenings" and provided current dosage information.
The employer rescinded the job offer after the plaintiff tested positive for cannabis. The plaintiff sued, alleging that the employer violated PUMA's anti-discrimination provision, claiming her rejection was discriminatory because she was qualified to use marijuana under PUMA.
The Noffsinger II court concluded the employer violated PUMA by rescinding the plaintiff's job offer on the basis of a positive pre-employment drug test when it knew she was using marijuana as permitted under Connecticut law.
The employer bases its position on, among other authority, the federal Drug Free Workplace Act and the federal False Claims Act.
Reading the DFWA narrowly to prohibit only the possession and use of illegal drugs at work, the court concluded that the DFWA did not require the defendant to rescind the plaintiff's job offer because she reportedly used marijuana for medicinal use after work during off-hours.
The court reached the same conclusion in response to the employer's argument that the federal False Claims Act barred it from hiring the plaintiff. . . .[T]he court concluded that "there is no federal law that bars defendant from hiring plaintiff on account of her medicinal use of marijuana outside work hours.
The court also found the employer’s argument that the employment decision was based on the positive drug test result, not on the employee’s status of a PUMA-qualified medical marijuana user unpersuasive. The authors explain:
The court disagreed, in effect finding action based on a positive workplace drug test for marijuana constitutes status-based discrimination when an employer knows the result was caused by marijuana use lawful under Connecticut law. The court explained, "[there] would be no reason for a patient to seek PUMA status if not to use medical marijuana as permitted under PUMA.
According to Deitchler and McKenna, “[t]he takeaway is that the DFWA is not a "free pass" to justify or defend the application of a "zero tolerance" policy in jurisdictions that have adopted protections for medical marijuana users.”
As 30 states in the US have legalized medical marijuana use, it is likely worthwhile to follow the development of this case as it could have a lasting effect on the relationship between state and federal laws in the labor and employment arena.