Second Court Allows Medical Marijuana User to Pursue Employment Claim

By: Karen L. Piper

Connecticut’s medical marijuana law specifically prohibits employers from refusing to hire or discharging a medical marijuana user. In Noffsinger v SSC Niantic Operating Company, LLC (Case No. 3:16-cv-01938, D. Conn., August 8, 2017), the plaintiff was offered a job as director of recreation therapy at a nursing facility. She quit her existing job to accept the new job. At a meeting to “complete paperwork and a routine pre-employment drug screen,” the candidate told the new employer that she used medical marijuana prescribed for PTSD at home in the evenings and was never impaired at work. A week later, after the candidate tested positive for [medical] marijuana, the job offer was rescinded. The candidate sued for violation of the state’s medical marijuana law.

The employer responded that federal law, including the Controlled Substances Act (“CSA”) and the Americans with Disabilities Act (“ADA”) preempted the candidate’s state law claims. The federal district court in Connecticut rejected this defense.

To establish preemption, the employer had to show there was an “actual conflict” between federal law and the state medical marijuana law. Although the CSA prohibits the use, possession and distribution of marijuana, it does not prohibit employment of a marijuana user; the CSA does not “regulate employment practices in any manner.” The court specifically distinguished Michigan’s medical marijuana case (Casias v Wal-Mart Stores, Inc., 695 F3d 428 (6th Cir. 2012)) because, unlike Connecticut’s law, Michigan’s medical marijuana law does not impose restrictions on employers.

The court also rejected the employer’s argument that the ADA preempted the state marijuana law. The employer cited several provisions of the ADA that indicate the ADA does not protect users of illegal drugs, including provisions which state: 1) an employer can prohibit the illegal use of drugs; 2) an employer may hold an employee who uses illegal drugs to the same employment standards as other employees; and 3) nothing in the ADA should be construed to encourage or prohibit drug testing. The court ruled none of these ADA provisions preempted the anti-discrimination provision in Connecticut’s medical marijuana law.

The Noffsinger case is the second case in less than 30 days to allow a medical marijuana user to pursue an employment claim. Last week this author wrote about a Massachusetts case which decided, based on Massachusetts’ disability discrimination law, the employer was  required to 1) engage in the interactive process to determine whether there were “equally effective medical alternatives to the prescribed medication whose use would not be in violation” of the employer’s policy prohibiting marijuana; and 2) if there were no equally effective alternative, to show that the employee’s use of marijuana would cause an “undue hardship to the employer’s business” to justify its failure to accommodate. Barbuto v Advantage Sales & Marketing LLC, Case No. SJC-1226, July 17, 2017.

Michigan already allows medical marijuana users to collect unemployment benefits. These cases likely will motivate medical marijuana users to expand workplace protections for medical marijuana users. When faced with an issue involving medical marijuana in the workplace, consult experienced employment counsel, such as the author.

This article was written by Karen L. Piper, who is Secretary of the Board of Detroit SHRM, a member of the Legal Affairs Committee, and a Member of Bodman PLC, which represents employers, only, in Workplace Law. Ms. Piper can be reached at Bodman’s Troy office at (248) 743-6025 or kpiper@bodmanlaw.com. For further information, go to:  http://www.bodmanlaw.com/attorneys/karen-l-piper.

Detroit SHRM encourages members to share these articles with others, inside and outside their organization, as long as its name and logo, and the author’s information are included in the re-post of the article. August 2017.