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 If an employee is fired or if a job offer is rescinded because the employee or applicant tests positive for marijuana during a drug screening, he or she may have grounds to sue.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.

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.

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Best regards
und viele Grüße aus Charlotte
Reinhard von Hennigs
www.bridgehouse.law