United States: Employing Medical Marijuana Users – Does Federal Law Give Employers A Pass?

Last Updated: September 27 2018
Article by Donald C. Davis

Until a few cases over the last year, courts appeared to be just fine maintaining the paradox that while individuals could lawfully treat their disabilities with licensed medical marijuana use, employers could choose to pass on employing medical marijuana users by relying on the illegality of marijuana under federal law. Before last year, courts in Oregon, California, Colorado, Michigan, and New Mexico all rejected employment claims brought by plaintiffs under state marijuana legalization and lawful off-duty conduct laws. Last year in Massachusetts and Rhode Island, state courts challenged that paradox, and this month, in Connecticut, a federal court did the same.

In Noffsinger v. SSC Niantic Operating Co. LLC dba Bride Brook Nursing & Rehabilitation Center, the court explored whether a candidate for employment was properly denied employment because, pursuant to the Connecticut Palliative Use of Marijuana Act ("PUMA"), she treats her post-traumatic stress disorder by taking synthetic marijuana pills.

The facts here are simple and straightforward. After receiving an employment offer and then informing the employer of her status as a lawful medical marijuana user, the plaintiff submitted to pre-employment drug testing and tested positive for THC, a chemical component of marijuana. SSC, the putative employer, rescinded the job offer immediately after a third party confirmed the positive test. The parties did not genuinely dispute why the job offer was rescinded; the evidence clearly showed that SSC rescinded the job offer because the plaintiff tested positive for THC and that this positive drug test stemmed from plaintiff's lawful use of marijuana to treat her medical condition.

The Employer Is Not Exempt From Following the State Law

SSC's first and primary argument in its motion for summary judgment rested upon its assertion that federal law exempted it from PUMA's anti-discrimination provision or otherwise barred it from hiring a marijuana user. According to SSC, the federal Drug Free Workplace Act ("DFWA") precluded the hire because it requires federal contractors such as SSC to make a "good faith effort" to maintain drug-free workplaces, and SSC adopted its substance abuse policy in order to comply with DFWA. But the court noted that nothing in the DFWA required SSC to refuse to hire the plaintiff on these grounds. First, the DFWA does not require drug testing of applicants or employees. Second, the DFWA does not prohibit federal contractors from employing someone who uses drugs – even illegal ones – outside of the workplace. SSC also urged the court to find that the federal False Claims Act ("FCA") bars the company from hiring plaintiff, supposedly because employing a medical marijuana user in violation of federal law would defraud the federal government. The court made very short work in rejecting that argument.

Federal Law Does Not Preempt the State Law

In a previous ruling in this case denying SSC's motion to dismiss, the court found that PUMA's anti-discrimination provision is not preempted by federal law and that SSC is not exempt from the anti-discrimination provision, going so far as to call SSC's exemption argument "border[ing] on the absurd." SSC had principally argued that PUMA is preempted by three different federal statutes: the Controlled Substances Act ("CSA"), the Americans with Disabilities Act ("ADA"), and the Food, Drug, and Cosmetic Act ("FDCA"). Looking through the lens of the general rule of federal preemption – that a federal statute will not be found to preempt state law claims absent a clear and manifest intent to do so – the court found that none of the three federal laws cited by SSC invalidates PUMA under a theory of obstacle preemption. In other words, PUMA's anti-discrimination provision does not represent an obstacle to the accomplishment of Congress's purpose in enacting each of the three cited statutes.

As for the Controlled Substances Act, while Congress intended to classify marijuana as a Schedule I substance and declared it without medicinal value, Congress did not make it illegal to employ a marijuana user or regulate employment practices in any manner. Similarly, the court found that the Food, Drug, and Cosmetic Act does not preempt PUMA's anti-discrimination provision because FDCA does not purport to regulate employment. Further, the CSA contains a provision explicitly stating that the CSA does not preempt state law "unless there is a positive conflict between ... this subchapter and that State so that the two cannot consistently stand together." The court distinguished decisions by other courts that have declined to protect employees or applicants from adverse employment action under other state medical marijuana laws. Those cases, the court said, rejected their plaintiffs' claims either as a matter of statutory interpretation or found them preempted because those state laws lacked the express anti-discrimination provision present in PUMA. In short, the court posited that, "[g]iven that the CSA nowhere prohibits employers from hiring applicants who may be engaged in illegal drug use, defendant has not established the sort of 'positive conflict' between [PUMA's anti-discrimination provision] and the CSA that is required for preemption under the very terms of the CSA."

Next, SSC argued that the ADA preempts PUMA's antidiscrimination provision, claiming that it creates an illicit-drug-use exception to the ADA's nondiscrimination and reasonable accommodation mandates. But the court pointed to the text of the ADA to find that the ADA provides that an employer may only prohibit an employee from the illegal use of drugs "at the workplace." Further, "the fact that the ADA allows an employer to use drug testing without fear of facing liability under the ADA does not additionally and exorbitantly mean that the ADA was intended to categorically preclude the States from preventing an employer from taking adverse action against someone who fails any kind of a drug test." Finally, the ADA's preemption savings clause manifests a clear intent to allow states to enact greater protections for persons who may suffer from disabilities such as post-traumatic stress disorder.

Employer Takeaways

Employers should engage in a careful analysis before taking any adverse action with respect to an employee or applicant who tests positive for marijuana in a state that explicitly protects medical marijuana users, such as Connecticut, Massachusetts, or Rhode Island. Indeed, it would not come as a surprise to see state and federal courts in other states that have legalized marijuana follow the lead of the New England states – including in states such as California and Colorado that have already visited this issue. Federal law no longer represents the safe harbor employers in these states once assumed it was. Cases like this one challenge employers' notions about medical marijuana use and force them to deal head-on with whether and how to employ and accommodate medical marijuana users.

The practical reality in states such as Massachusetts, and perhaps others, is that employers may have to accommodate applicants and employees by making exceptions to their substance use policies for employees who can, with the accommodation, safely and effectively perform the essential functions of their position. Finally, remember that nothing in these statutes or cases impacts an employer's ability to discipline an employee for on-duty use of marijuana or maintain a policy that prohibits purely recreational marijuana use.

Employers should reexamine job descriptions to ensure that they accurately and completely capture all of the essential functions of the job – especially where a job may be highly safety-sensitive or demand a high level of alertness. Additionally, nothing can substitute for good training for human resources and recruiting professionals who will undoubtedly face questions and challenges posed by current employees and applicants who use medical marijuana.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Donald C. Davis
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