Why it matters
Continuing the recent trend of favoring employees when considering the intersection of employment and state laws permitting the medical use of marijuana, a Connecticut federal court judge determined that an employee could bring suit alleging discrimination against a company for rescinding her job offer after she tested positive for marijuana. Pursuant to Connecticut’s Palliative Use of Marijuana Act (PUMA), Katelin Noffsinger was prescribed medical marijuana to treat her post-traumatic stress disorder. Employed as a recreational therapist, she was recruited by another facility and accepted the new position. Although she informed her prospective employer of her drug use, her offer was rescinded after she failed the drug test. Noffsinger filed suit alleging discrimination in violation of PUMA. In a case of first impression, the court determined that a private right of action existed under PUMA and that federal law—including the Controlled Substances Act—did not pre-empt the state law, moving the suit forward. The Connecticut decision follows similar rulings from Massachusetts and Rhode Island, where courts permitted employees who were legally prescribed medical marijuana to take action against employers.
In 2012, Connecticut enacted the Palliative Use of Marijuana Act (PUMA). The statute permits the use of medical marijuana for “qualifying patients” with certain debilitating medical conditions. It also includes a provision that explicitly prohibits discrimination against qualifying patients and primary caregivers by schools, landlords and employers.
Katelin Noffsinger was diagnosed with post-traumatic stress disorder (PTSD) in 2012, and her doctors recommended medical marijuana as treatment in 2015. After receiving her registration certificate pursuant to the law, Noffsinger began taking one capsule of a synthetic form of cannabis each night as prescribed.
A recreational therapist, Noffsinger was recruited by Bride Brook, a nursing facility in Niantic. The administrator of the facility offered her a position and Noffsinger accepted. The administrator then set up a meeting to complete paperwork and instructed Noffsinger to give notice at her current position so she could start sooner. At the meeting to complete her paperwork, Noffsinger showed her registration certificate and explained that she took her medication at night before bed and was therefore never impaired during the workday.
The administrator continued to process her paperwork, and Noffsinger provided a sample for a drug test. One day before she was scheduled to begin work at Bride Brook, the administrator called and rescinded the offer because of her positive drug test. Because Noffsinger had already given her notice at her prior position, she was left unemployed.
Noffsinger filed suit alleging a violation of PUMA’s antidiscrimination provision as well as negligent infliction of emotional distress. Bride Brook moved to dismiss, arguing that federal law pre-empted the state statute and that the law did not contain a private right of action.
In a matter of first impression, U.S. District Court Judge Jeffrey Alker Meyer rejected both arguments and denied the employer’s motion.
The Controlled Substances Act (CSA) makes it a federal crime to use, possess or distribute marijuana. However, the CSA does not make it illegal to employ a marijuana user, nor does it purport to regulate the employment relationship in any manner, the court said. It also contains a savings clause that explicitly states Congress did not intend for the CSA to pre-empt state law “unless there is a positive conflict between that provision of [the CSA] and that State law so that the two cannot consistently stand together.”
Bride Brook’s argument—that PUMA affirmatively authorized the very conduct (marijuana use) that the CSA prohibits—was overbroad, the court said, and overlooks the operative provision of PUMA at issue in the case: the provision that prohibits an employer from discriminating against authorized persons who used medical marijuana.
“PUMA regulates the employment relationship, an area in which States ‘possess broad authority under their policy powers to regulate,’” Judge Meyer wrote. “Given 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] and the CSA that is required for preemption under the very terms of the CSA.”
A similar pre-emption argument relying on the Americans with Disabilities Act and the Food, Drug, and Cosmetic Act also failed for the employer.
The court then turned to the question of whether a private right of action existed under the state law. Concluding that Noffsinger “certainly falls within the class for whose benefit the statute was enacted,” and finding no indication of legislative intent to deny a private cause of action, the court said recognizing a private right of action “is not inconsistent with the underlying purposes of the legislative scheme but in fact effectuates the evidence of legislative purpose to prevent employers from discriminating against authorized medicinal users of marijuana.”
Even more importantly, “without a private cause of action, [the antidiscrimination provision] would have no practical effect, because the law does not provide for any other enforcement mechanism,” Judge Meyer wrote.
The court therefore denied the employer’s motion to dismiss Noffsinger’s PUMA claim as well as her claim for emotional distress.
To view the ruling in Noffsinger v. SSC Niantic Operating Company, click here.