A Connecticut Federal District Court judge ruled on August 8, 2017 that an employer may violate state law by refusing to hire an applicant who tests positive for marijuana where the applicant is a lawful user of medical marijuana under Connecticut Law.
In Noffsinger v. SSC Niantic Operating Company, LLC, the plaintiff was recruited by the defendant for a position as director of recreational therapy at a nursing facility. She was offered the position during the interview and accepted it the next day. The plaintiff was required to undergo a routine drug screen as a condition of employment. Prior to the drug screen, she informed the defendant that she was registered as a "qualifying patient" authorized to use medical marijuana to treat her post-traumatic stress disorder. The plaintiff explained that she only took Marinol (a synthetic form of cannabis) in the evening before bed and was never impaired during the workday. The plaintiff took the pre-employment drug test and tested positive for cannabis. Thereafter, the defendant withdrew its offer of employment, and the plaintiff filed a complaint alleging: (a) violation of Connecticut law prohibiting discrimination against qualifying patients; (b) a common law claim for wrongful rescission of a job offer in violation of public policy; and (c) negligent infliction of emotional distress. The defendant filed a motion to dismiss the claims.
The Court's Decision
The court rejected the defendant's claim that Connecticut law is preempted by several federal laws including the Controlled Substances Act (making it a federal crime to use, possess or distribute marijuana), the Americans with Disabilities Act, and the Food, Drug, and Cosmetic Act. The court also rejected the defendant's argument that state law does not provide a private cause of action, and rejected the defendant's claim that it is exempt from state law as a federal contractor. As such, the court denied the defendant's motion to dismiss the plaintiff's discrimination claim. The court granted the defendant's motion to dismiss the common law claim for wrongful rescission because the plaintiff had an adequate statutory remedy, and denied the motion to dismiss the negligent infliction of emotional distress claim.
What Does This Mean for Employers?
Connecticut law does not restrict an employer's ability to prohibit the use of intoxicating substances during work hours nor does it restrict an employer's ability to discipline an employee for being under the influence of intoxicating substances during work hours. The challenge for employers, however, is that drug tests often cannot pinpoint when an employee used or was under the influence of an intoxicating substance. Thus, employers must be careful about categorically denying or terminating the employment of "qualifying patients" who test positive during a drug test. Employers also must be mindful of their obligation to accommodate employees with qualifying disabilities. Recently, the Massachusetts Supreme Court held in Barbuto v. Advantage Sales & Marketing LLC that employers may be required to reasonably accommodate an employee's lawful use of medical marijuana.
Certainly, there will be more court decisions defining the rights and obligations of employers and employees. In the meantime, employers should review their policies and practices and make any necessary revisions to address issues related to employee use of medical marijuana.