In a case of first impression in Connecticut, a recent ruling by a federal court calls into question the right of employers to have a zero tolerance approach to medical marijuana based on the argument that the use or possession of marijuana is unlawful under the federal Controlled Substances Act (CSA). This marks the third time this year that a court has ruled in favor of a medical marijuana user. In July 2017, a Massachusetts court allowed claims to proceed against an employer that fired a medical marijuana user for testing positive for marijuana, finding that tolerating off-duty medical marijuana use may be a “reasonable accommodation” of a disability under state law. And, in May 2017, a Rhode Island court concluded it was unlawful for an employer to reject a medical marijuana cardholder, even if the individual would test positive for marijuana use, based on the theory that state law prohibited employers from discriminating against cardholders and their actual use of marijuana.
Now, in Noffsinger v. Bride Brook Nursing & Rehabilitation Center, a Connecticut federal district court judge ruled that the CSA (among other laws), which makes it unlawful for an individual to use or sell marijuana (even for medical purposes), does not preempt the state’s Palliative Use of Marijuana Act (PUMA). The PUMA provides explicit protection against employment discrimination on the basis of the medicinal use of marijuana in compliance with state law, even if the user fails an employment drug test. According to the court: “[A] plaintiff who uses marijuana for medicinal purposes in compliance with Connecticut law may maintain a cause of action against an employer who refuses to employ her for this reason.”
The plaintiff, a registered medical marijuana user, was taking one capsule of Marinol, a synthetic form of cannabis, each night as prescribed by her doctors to treat her post-traumatic stress disorder. At the time she received an offer of employment, the plaintiff notified her prospective employer that she was registered with the state and took Marinol before sleeping. The plaintiff advised that because she only took Marinol at night, it would not cause her to be impaired while working. The employer then rescinded the job offer upon receiving the positive test result. The plaintiff sued the employer, claiming, among other things, that it discriminated against her in violation of the PUMA.
The employer moved to dismiss and argued that the CSA preempted the plaintiff’s claim based on the theory of “obstacle preemption,” which arguably occurs when a state law stands as an obstacle to federal Congressional objectives. Although the court recognized the CSA makes it unlawful for individuals to engage in the very conduct permitted by the PUMA – marijuana use – the court found no preemption. (Marinol is a Schedule III drug under the CSA, which means that when prescribed and taken properly, its use is not illegal under federal law. This does not appear to have been raised by the employer and was not factored into the court’s analysis.)
Specifically, the court held the CSA does not preempt the PUMA because the CSA “does not make it illegal to employ a marijuana user.” In fact, the CSA does not “purport to regulate employment practices in any manner.” Notably, the CSA contains a provision stating that Congress did not intend for it to preempt state law “unless there is a positive conflict between that provision … and that State law so that the two cannot consistently stand together.” (The court also rejected the employer’s additional arguments that the plaintiff’s claims were preempted by the Americans with Disabilities Act and the federal Food, Drug, and Cosmetic Act.)
After concluding that none of these federal laws preempted the plaintiff’s state law claims, the court considered the employer’s argument that the PUMA did not grant affected individuals with a private right of action. The court rejected this contention and found that such a right is implied by the PUMA’s anti-discrimination provision. According to the court, if a plaintiff cannot directly sue an employer, the PUMA “would have no practical effect, because the law does not provide for any other enforcement mechanism.”
The decision is from one federal district court analyzing the medical marijuana law in Connecticut. Thus, it is not binding on other courts and the employer may appeal the decision. That said, it also is possible that other courts considering similar challenges to state medical marijuana laws will follow suit, particularly in states with medical marijuana laws that explicitly prohibit discrimination against medical marijuana users, such as Arizona, Illinois, Minnesota, and New York (among others). Similar rulings in these jurisdictions could directly impact multi-state employers that attempt to enforce a general policy against employee use of marijuana. In the meantime, employers should consider reviewing their substance abuse policies in states that have medical marijuana laws with broad employment protections and anti-disability discrimination laws. More states are enacting medical marijuana laws and courts are now issuing employee-friendly decisions addressing existing laws, which makes it particularly important for employers to stay ahead of this evolving area of the law.