Connecticut Court Holds that Refusing to Hire Medical Marijuana User
Violates State Law
For the
last two decades, state legislatures across the United States have been passing
laws to permit and regulate the use of marijuana for medicinal purposes.
However, employers have wondered whether federal law would preempt state law
due to the fact that marijuana is still classified by US federal law as a
Schedule 1 drug (along with heroin, LSD and Ecstasy). Given the proliferation
of state medical marijuana laws, courts around the country are now confronted
with the question of how these permissive state laws may reconcile – if at all
– with federal law.
In 2017,
Connecticut District Court Judge Jeffrey A. Meyer determined that Connecticut
employees, who have been certified by the Department for Consumer Protection to
use medical marijuana outside of work hours and are not impaired while at work,
are protected under the state’s employment protection laws. If an employee is
fired or if a job offer is rescinded because the employee or applicant tests
positive for marijuana during a drug screening, he or she may have grounds to
sue.
Unlike the
laws of other states which permit residents to be prescribed medical marijuana,
Connecticut’s statute expressly makes it unlawful to refuse to hire or to
discharge an employee solely because of the individual’s status as a qualifying
patient, or for testing positive in a drug screening as a result of using
medical marijuana. However, the statute does not protect individuals who are
found to be using or are under the influence of medical marijuana during
working hours. The Connecticut court analyzed federal drug laws and determined
that they do not address the issue of employment and do not make it unlawful to
employ a medical marijuana user. As a result, even though federal law prohibits
the possession or use of marijuana, those restrictions do not apply to someone
properly using medical marijuana under state law.
The
conflict between state laws permitting the use of marijuana and federal laws
which still prohibit its use was spotlighted in a case before the United States
District Court in Connecticut (Noffsinger
v. SSC Niantic Operating Co. LLC, d/b/a Bride Brook Nursing & Rehab. Ctr.)
decided on August 7, 2017. Bride Brook, a federal contractor, made an offer of
employment to Katelin Noffsinger contingent on her passing a pre-employment
drug screening. Noffsinger told Bride Brook that she was a registered
qualifying patient under the Connecticut Palliative Use of Marijuana Act (PUMA)
and she has used medical marijuana since 2015 to treat post-traumatic stress
disorder.
When the
pre-employment drug test came back positive for marijuana, Bride Brook rescinded
Noffsinger’s employment offer because they followed the federal law holding
that marijuana is illegal. As a result, Noffsinger filed a complaint in state
district court alleging, among other things, a violation of PUMA’s anti-discrimination
provision which states that, unless required by federal law or required to obtain
funding, no employer may refuse to hire a person or may discharge, penalize or
threaten an employee solely on the basis of such person’s or employee’s status
as a qualifying medical marijuana patient.
Bride Brook
argued that its refusal to hire Noffsinger was allowed by an exception to
PUMA’s anti-discrimination provision (when “required by federal law or required
to obtain federal funding”). The company argued that the federal Drug-Free
Workplace Act (DFWA) barred it from hiring Noffsinger because that law
prohibits federal contractors from allowing employees to use illegal drugs. The
court rejected Bride Brook’s argument, noting that the DFWA does not require
drug testing and does not regulate employees who use illegal drugs outside of
work while off-duty. The court also rejected Bride Brook’s argument that the
company did not violate PUMA because it did not discriminate against Noffsinger
based on her status as a medical marijuana user; rather, it had relied on the
positive drug test result. The court dismissed this argument, concluding that
acceptance of the argument would nullify a medical marijuana user’s protections
under PUMA.
While the
court found that Bride Brook had engaged in employment discrimination, it
declined to award Noffsinger attorney’s fees or punitive damages because those
types of damages are not expressly recoverable under PUMA. Additionally, the
court dismissed Noffsinger’s claim for negligent infliction of emotional
distress because her employer did not engage in “unreasonable conduct” and Noffsinger
chose to give notice to her prior employer that she was resigning before she
had advised Bride Brook of her medical marijuana status.
Implications for
Employers
Noffsinger’s case illustrates that employers, including
federal contractors, should not rely solely on federal law or their status as a
federal contractor when making employment decisions with regard to applicants
and employees who use medical marijuana. Courts in Connecticut and other states
will enforce state laws against discrimination with regard to medical marijuana
use.
https://www.ebglaw.com/content/uploads/2017/10/Noffsinger-v-SSC-Niantic-Operating-Co-LLC-2017-US.pdf
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