Why it matters

For employers concerned about the impact of the growing number of states legalizing marijuana use, a recent decision from a Rhode Island court is worth reading. When applying for a paid internship, Christine Callaghan disclosed that she had a medical marijuana card and would not pass Darlington Fabrics Corp.’s required pre-employment drug test. Callaghan sued when she was not hired, alleging discrimination under the state’s disability law as well as the medical marijuana statute. Relying on language in the statute that nothing in the law “shall be construed to require … [a]n employer to accommodate the medical use of marijuana in the workplace,” the employer moved for summary judgment. But the court sided with the plaintiff. Implying a private right of action from the state’s medical marijuana statute, the court said employers cannot refuse to hire a medical marijuana cardholder even if the applicant would fail a drug test, because the law prohibits the refusal to employ a worker due to his or her status as a cardholder. Further, Callaghan’s disability claims survived because she could demonstrate discrimination against a class of disabled people (those with disabilities best treated by medical marijuana). Finally, the court held the Controlled Substances Act did not preempt the action. While marijuana laws vary from state to state, employers should prepare themselves for the issue to be raised in other jurisdictions.

Detailed discussion

A master’s student studying textiles at the University of Rhode Island, Christine Callaghan sought an internship as a requirement of her program, applying at Darlington Fabrics Corp. During a meeting with a human resources coordinator, Callaghan disclosed that she held a medical marijuana card, authorized by the state’s Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act (the Hawkins-Slater Act).

She signed a statement acknowledging that she would be required to take a drug test prior to being hired, and during a later phone conversation indicated that she would test positive on her drug screening. Darlington later informed Callaghan that the company was “unable to hire her.”

Callaghan then filed suit alleging employment discrimination in violation of the Hawkins-Slater Act, and the parties filed cross motions for summary judgment. Considering a matter of first impression, Rhode Island Superior Court Judge Richard A. Licht granted summary judgment in favor of Callaghan.

The first question for the court: Does the Hawkins-Slater Act provide a private right of action through which Callaghan could seek relief? The statute—which states in Section 21-28.6-4(d), “No school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder”—does not provide an express private right of action.

But the court determined that such a right exists. Although state courts are hesitant to imply private rights of action, Judge Licht said that without an enforcement mechanism, the Hawkins-Slater Act would be devoid of any purpose, inefficacious or nugatory. The law does not list any penalties for violations, and no state department was granted authority to administer its mandates. “[W]ithout a private right of action, Section 21-28.6-4(d) would be meaningless,” the court said.

Having established the plaintiff’s ability to bring suit, the court then considered the relevance of Section 21-28.6-7(b)(2), which states: “Nothing in this chapter shall be construed to require … [a]n employer to accommodate the medical use of marijuana in any workplace.” Darlington pointed to this language to argue it could not be liable for its refusal to hire Callaghan.

But the court was not persuaded. “The natural conclusion is that the General Assembly contemplated that the statute would, in some way, require employers to accommodate the medical use of marijuana outside the workplace,” Judge Licht wrote, undermining the defendant’s argument that its actions did not violate the statute by refusing to hire Callaghan based on her inability to pass a drug test.

The court was also not swayed by Darlington’s distinction that Callaghan was not hired based not on her status as a cardholder, but on her inability to pass a drug test. Characterizing this argument as “incredulous,” the court found it hard to believe that the state legislature meant to create different legal protections for cardholders and users of medical marijuana. “Defendants would have the court believe that a patient cardholder might never use medical marijuana,” the court wrote. “[I]t is absurd to think that the General Assembly wished to extend less protection to those suffering with debilitating medical conditions and who are the focus of the Hawkins-Slater Act.”

Reading the statute broadly, as required, “this Court gleans that the Hawkins-Slater Act provides that employees cannot refuse to employ a person for his or her status as a cardholder, and that that right may not be denied for the medical use of marijuana,” the court wrote. “If the Court were to interpret Section 21-28.6-4(d) as narrowly as Defendants propose, Plaintiff and other medical marijuana users would be lumped together with nonmedical users of marijuana. The protections that Section 21-28.6-4(d) affords would be illusory—every medical marijuana patient could be screened out by a facially-neutral drug test.”

Applying this standard to the facts of the case, the court said Darlington violated the Hawkins-Slater Act and granted summary judgment in Callaghan’s favor.

The court did add one final note about federal preemption, writing that the Controlled Substances Act did not preempt the Hawkins-Slater Act. Employment law and antidiscrimination law are two examples of powers traditionally delegated to the states, Judge Licht said, finding the purpose of the CSA to be “quite distant” from this realm.

“To read the CSA as preempting either the Hawkins-Slater Act or [state antidiscrimination law] would imply that anyone who employs someone that violates federal law is thereby frustrating the purpose of that law,” the court wrote. “That connection must, at some point, be deemed too attenuated.”

Further, Congress is well aware of the various states’ medical marijuana laws and has even passed an amendment preventing funds from being used to hamper the states from implementing them, “a direct and unambiguous indication that Congress has decided to tolerate the tension, at least for now, between the federal and state regimes,” the court said.

To read the decision in Callaghan v. Darlington Fabrics Corporation, click here.