Federal district court in Connecticut rejects preemption claims by employer sued after rescinding employment offer to medical marijuana user

I noted in this post last month the significant ruling of the Massachusetts Supreme Judicial Court in Barbuto v. Advantage Sales and Marketing, LLC, No. SJC 12226 (Mass. July 17, 2017) (available here) allowing a state-law-based civil discrimination lawsuit to proceed after an lawful medical marijuana user has been fired for a positive drug test.  This past week, as detailed in this helpful opinion summary, a similar type of decision was handed down by a federal district judge in Connecticut in Noffsinger v. SSC Niantic Operating Co, LLC, No. 3:16-cv-01938 (D. Conn. Aug 8, 2017) (available here).  Here are the basics:

In an issue of first impression, a federal district court in Connecticut found an implied private right of action under Connecticut’s Palliative Use of Marijuana Act (PUMA) and further held that federal law did not preempt the PUMA discrimination claim of a registered medical marijuana user whose job offer was rescinded after she tested positive, even though she explained to the employer that she only took synthetic cannabis at bedtime and was not under the influence at work. In finding no preemption, the court explained the federal Controlled Substances Act (CSA) does not regulate the employment relationship and that the ADA does not regulate non-workplace activity.

Here is how the opinion in Noffsinger gets started, along with a key passage from the heart of the ruling:

Connecticut is one of a growing number of States to allow the use of marijuana for medicinal purposes. Connecticut likewise bars employers from firing or refusing to hire an employee who uses medical marijuana in compliance with the requirements of Connecticut law.  By contrast, federal law categorically prohibits the use of marijuana even for medical purposes.

This lawsuit calls upon me to decide if federal law preempts Connecticut law.  In particular, I must decide if federal law precludes enforcement of a Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes.  I conclude that the answer to that question is “no” and that a plaintiff who uses marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refuses to employ her for this reason.  Accordingly, I will largely deny defendant’s motion to dismiss this lawsuit....

Although most cases dealing with the CSA’s preemption of state medical marijuana statutes have come out in favor of employers, these cases have not concerned statutes with specific anti-discrimination provisions; courts and commentators alike have suggested that a statute that clearly and explicitly provided employment protections for medical marijuana users could lead to a different result.  Indeed, one court recently held that the CSA does not preempt the anti-discrimination-in-employment provision of Rhode Island’s medical marijuana statute. See Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181, at *13–14 (R.I. Super. 2017).