United States: Connecticut Employer's Defenses On Medical Marijuana User's Discrimination Claim Go Up In Smoke

A federal court in Connecticut recently granted summary judgment to a prospective employee on an employment discrimination claim brought under Connecticut's Palliative Use of Marijuana Act (PUMA). The case, Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Nursing & Rehab. Ctr. (D. Conn. Sept. 5, 2018) adds to an evolving area of litigation regarding employees who use medical marijuana pursuant to a valid state-approved program.

Bride Brook, a federal contractor, made an employment offer to Noffsinger as an Activities Manager. The offer was subject to the completion of a pre-employment drug screen. Noffsinger disclosed to Bride Brook that she participated in Connecticut's medical marijuana program because she has Post Traumatic Stress Disorder (PTSD). Noffsinger also showed Bride Brook her registration certificate and an empty pill container displaying the name and dosage of her medical marijuana pills. After the drug screen came back positive, Bride Brook rescinded its employment offer.

Noffsinger sued, claiming, among other things, that Bride Brook violated PUMA's anti-discrimination provision. PUMA's anti-discrimination provision provides, "[u]nless 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 patient." Conn. Gen. Stat. §21a-408p(b)(3).

Last year, the Court rejected Bride Brook's argument that PUMA was preempted by the federal Controlled Substances Act and permitted Noffsinger's PUMA claim to proceed. In doing so, the Court held that PUMA provides a private right of action. The parties then proceeded with discovery and both parties moved for summary judgment.

Bride Brook first argued that it is exempt under PUMA's anti-discrimination provision exception permitting discrimination if "required by federal law or required to obtain federal funding." Bride Brook claimed that the federal Drug Free Workplace Act (DFWA) barred it from hiring Noffsinger because it requires federal contractors such as Bride Brook to make a "good faith effort" to maintain a drug-free workplace. Bride Brook claimed that it adopted a zero tolerance substance abuse policy to comply with the DFWA. The Court rejected this argument, finding that the DFWA does not require drug testing, nor does it prohibit federal contractors from employing someone who uses illegal drugs outside of the workplace, particularly those who use medical marijuana in accordance with a state-approved program.

The Court also rejected Bride Brook's argument that the federal False Claims Act barred it from hiring Noffsinger, because employing a medical marijuana user would amount to defrauding the federal government. The Court noted that no federal law barred an employer from hiring an employee because of her off-duty use of medical marijuana. Finally, Bride Brook argued that PUMA prohibited discrimination based only on one's status as an approved medical marijuana user, rather than one's use of medical marijuana. The Court described this argument as "mak[ing] no sense" and would render PUMA's anti-discrimination purpose "a nullity."

Although the Court found that Bride Brook discriminated against Noffsinger under PUMA, it declined to award her attorneys' fees or punitive damages because PUMA does not provide a statutory right to recover those damages.

Takeaways

Employers may need to look beyond federal law in making employment decisions regarding applicants or employees who use medical marijuana. Like Connecticut, a growing number of states across the country have adopted similar medical marijuana use programs and/or anti-discrimination provisions under their medical marijuana laws. Multi-state employers should take note that courts may adopt very different rulings regarding the application of state anti-discrimination provisions and federal law. For example, the Colorado Supreme Court held in the 2015 case Coats v. Dish Network, LLC, that although the use of medical marijuana is lawful under state law, an employer could terminate an employee who used medical marijuana because such use was still illegal under federal law. Meanwhile, in a similar failure to hire case, a Rhode Island trial court ruled in Callaghan v. Darlington Fabrics Corp. that federal law did not preempt the state's medical marijuana statute and that refusing to hire a medical marijuana user violated the state's medical marijuana law. Employers must carefully consider the marijuana laws impacting their workplaces and scrutinize any employment decisions under those laws and their interpretation.

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