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 SSC, the putative employer, rescinded the job offer immediately after a third party confirmed the positive test. The parties did not genuinely dispute why the job offer was rescinded; the evidence clearly showed that SSC rescinded the job offer because the plaintiff tested positive for THC and that this positive drug test stemmed from plaintiff's lawful use of marijuana to treat her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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Donald C. Davis
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions