Federal Law Does Not Preempt Employee Protections under Connecticut's Medical Marijuana Law
Since 2012, Connecticut has permitted patients with certain medical conditions to use and possess medical marijuana to treat those conditions. The U.S. District Court for the District of Connecticut held this month that federal law does not preempt the provisions of Connecticut's Palliative Use of Marijuana Act ("PUMA") prohibiting employers from firing or refusing to hire individuals who are qualified under state law to use and possess medical marijuana. Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Health & Rehab. Ctr., No. 3:16-cv-01938 (D. Conn. Aug. 8, 2017). The Court also held, as a matter of first impression, that there is a private right of action for individuals claiming to be discriminated against as a result of their status as a qualifying patient under PUMA.
According to the allegations in her complaint, Katelin Noffsinger was offered the position of director of recreational therapy at Bride Brook, a nursing facility. Noffsinger accepted the offer and was thereafter required to undergo a routine pre-employment drug screen as a condition of employment.
Prior to the drug screen, she informed Bride Brook that she was registered with Connecticut's Department of Consumer Protection as a "qualifying patient" authorized to use medical marijuana to treat post-traumatic stress disorder, and produced the certificate confirming her status as a qualifying patient under PUMA. Noffsinger told Bride Brook that she took a synthetic form of cannabis in capsule form in the evening before going to bed, and further represented that she would never be impaired during the workday. Noffsinger offered to provide medical documentation if necessary, though none was requested by Bride Brook. Noffsinger took the pre-employment drug test and tested positive for cannabis. The day before Noffsinger was scheduled to begin work, Bride Brook rescinded her job offer because of the positive drug test. Noffsinger filed a complaint alleging, among other claims, a violation of PUMA's anti-discrimination provision.
No Federal Preemption
Bride Brook moved to dismiss Noffsinger's complaint, arguing that PUMA is in conflict with, and therefore preempted by, several federal laws, specifically the Controlled Substances Act ("CSA"), Americans with Disabilities Act ("ADA"), and Food, Drug and Cosmetic Act ("FDCA"). But the Court rejected the preemption argument, finding that PUMA does not pose a conflict with any of the federal statutes.
- CSA: Bride Brook argued that because PUMA affirmatively authorizes the medical use, possession, sale and distribution of marijuana, it is in direct conflict with the CSA, which makes it a federal crime to use, possess or distribute marijuana. The Court disagreed because Noffsinger's claim arose under PUMA's anti-discrimination provision specifically and not PUMA more generally. The Court found no conflict between PUMA's anti-discrimination provision and the CSA because the CSA does not regulate employment decisions and, accordingly, does not prohibit employers from hiring or employing individuals who use illegal drugs.
- ADA: Bride Brook also argued that PUMA conflicts with the ADA for several reasons, none that the Court found persuasive:
- Bride Brook pointed to an ADA provision allowing employers to prohibit the use of illegal drugs by employees "at the workplace." The Court held that ADA provisions relating to the workplace use of drugs were irrelevant, as Noffsinger did not allege that she requested to use marijuana at work, nor does PUMA authorize workplace use.
- The Court likewise dismissed arguments pertaining to ADA provisions that allow employers to drug test without running afoul of the ADA, as this does not mean the ADA categorically precludes a state law like PUMA.
- The Court found Bride Brook's reliance on an ADA provision allowing employers to hold an employee who uses illegal drugs to the same qualification standards that apply to other employees misplaced because qualification standards must be related to job performance or behavior, and there was no suggestion that Noffsinger's marijuana use would affect her job performance.
- FDCA: The Court dismissed Bride Brook's argument that PUMA was preempted by the FDCA, which prohibits the sale or distribution of medications that have not been approved by the Food and Drug Administration. As with the CSA, the Court held the FDCA does not regulate employment and thus does not conflict with PUMA's employment-related provisions.
Bride Brook also moved to dismiss on the grounds that PUMA does not provide for a private right of action. PUMA explicitly prohibits employers from discriminating against employees or applicants based solely on their status as qualifying patients or caregivers, but it does not explicitly authorize a private right of action for individuals aggrieved under that provision. The Court, nevertheless, ruled that a private right of action was implied based on an analysis of the statute, legislative history, and applicable Connecticut precedent. Without a private right of action, the Court held PUMA's anti-discrimination provision would have no practical effect because there is no other enforcement mechanism.
Implications for Employers
Noffsinger is the first decision to conclude that marijuana's unlawful status under federal law does not bar an employment discrimination claim based on conduct protected by a state medical marijuana law.
Employers should, therefore, review their drug-testing policies and, in particular, any policies that include an automatic disqualification from hire or termination of employment because of a positive drug test, without accounting for qualifying patients.
It bears emphasis that PUMA does not restrict an employer's ability to prohibit the use of intoxicating substances during work hours or to discipline an employee for being under the influence of intoxicating substances during work hours. A challenge for employers, however, is that drug tests typically cannot pinpoint when an employee used, or was under the influence of, an intoxicating substance. Thus, employers should seek the advice of counsel before declining to hire an applicant or terminating an employee based on a positive drug test when the individual is a qualifying patient.
In the particular case of jobs designated as "high risk" or "safety-sensitive" under federal law, employers should note that PUMA's anti-discrimination provision allows an employer to refuse to hire or discharge a person if required by federal law. This exception may still be invoked to deny employment to a qualifying patient for, or discharge a qualifying patient from, a high-risk or safety-sensitive job regulated by federal law.