Connecticut Continues to Extend Protections to Employees under State Medical Marijuana Law, Rejects Federal Preemption Defense
Tags : Drug Testing
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. In 2017, the same 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.1 The decision, Noffsinger I, was also the first to imply a private cause of action under PUMA's employment anti-discrimination provisions.
Following the Noffsinger I decision, the 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.
Plaintiff's PTSD, Failed Drug Test, and PUMA Claim
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The employer rescinded the job offer after the plaintiff tested positive for cannabis.2 The plaintiff sued, alleging that the employer violated PUMA's anti-discrimination provision,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.
Court Concludes Employer Violated PUMA by Rescinding Job Offer
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 court was not swayed by various employer arguments resting on its "zero-tolerance" policy related to marijuana use.
The court first analyzed the impact of the federal Drug Free Workplace Act (DFWA), which requires federal contractors and certain federal grantees to make a good-faith effort to maintain a drug-free workplace. 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. The employer claimed unsuccessfully that any decision to employ an individual using marijuana in violation of federal law would amount to defrauding the federal government. In a sparse analysis, the 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."
Finally, the court rejected the employer's argument that PUMA prohibits discrimination only on the basis of one's status as an approved medical marijuana patient but not on account of one's use of marijuana as permitted by the PUMA program. The employer asserted it did not rescind the plaintiff's offer simply because she was PUMA-qualified; rather, it rescinded the offer because she tested positive for cannabis. 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."
The court then held—again on an issue of first impression—that Connecticut courts would recognize an implied private right of action for discrimination under PUMA (PUMA does not expressly provide such an action). The court reasoned that, absent such an interpretation, PUMA "would have no practical effect, because the law does not provide for any other enforcement mechanism."
Noffsinger II is significant because it is the first decision to address—and reject—a claim that an employer's DFWA obligations excuse adverse action when a worker is using marijuana in accordance with state law. It bears emphasis that the same reasoning could be deemed persuasive by Connecticut state reviewing courts or courts in any other state considering adverse employment action claims involving federal contractors. The 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.
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1 In Noffsinger I, the court addressed the employer's motion to dismiss a discrimination claim under PUMA on the basis that various federal laws prohibiting use and sale of marijuana preempt PUMA. The decision addressed three separate federal statutes—the Controlled Substances Act (CSA), the Americans with Disabilities Act (ADA), and the Food, Drug, and Cosmetic Act (FDCA)—and uniformly concluded PUMA was not preempted. See Dale L. Deitchler and Elizabeth R. McKenna, In the First Case of its Kind, Court Rules Federal Law Does Not Trump Employee Protections under State Medical Marijuana Law, Littler Insight (Aug. 16, 2017).
2The original Noffsinger decision was unusual because the court's analysis did not address the plaintiff's alleged use of Marinol (or dronabinol), which is lawful under the federal Controlled Substances Act (CSA) – i.e., it can be prescribed and used without violating the CSA. Noffsinger II, however, clarified that the plaintiff did not in fact use Marinol; rather, she used marijuana as permitted by PUMA, but in violation of federal law.
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