The issue of marijuana in the workplace continues to evolve, raising policy and liability questions for employers across the country. In 2012, Connecticut joined the ever-expanding number of states that have legalized the medical use of marijuana.
Employees and job applicants are further protected from employment discrimination based on their legal use of medical marijuana under state law. Recently, a federal district court judge determined that marijuana’s illicit status under federal law doesn’t preempt Connecticut’s explicit workplace protections for the use of medical marijuana.
Connecticut’s Protections for Medical Marijuana
Connecticut General Statutes § 21a-408p states, in relevant part: “No employer may refuse to hire a person or may discharge, penalize[,] or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver.”
However, the statute goes on to say, “Nothing in the law shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.”
We have previously informed readers of the risks and nuances presented by the statute’s application to a particular employee’s or job applicant’s use of marijuana. For example, you remain free to prohibit the use of intoxicating substances (including marijuana) at work. However, you may also be required to provide an employee reasonable accommodations, which could include accommodating the palliative use of marijuana.
Legal Use Despite Marijuana’s Illicit Status?
A Connecticut employer, SSC Niantic Operating Company LLC, d/b/a Bride Brook Nursing & Rehabilitation Center, attempted to short-circuit any nuances and confusion created under Connecticut’s medical marijuana law by arguing that marijuana’s classification as a Schedule I drug under the federal Controlled Substances Act (CSA) provided it a proper legal justification to rescind the job offer it extended to a job applicant after she failed a drug test.
“Nicole” was diagnosed with posttraumatic stress disorder (PTSD) in 2012, and in 2015, her doctors recommended that she use medical marijuana to treat her condition. She registered with the Connecticut Department of Consumer Protection as a “qualifying patient” under the state’s medical marijuana statute. Once she was registered, she began taking one capsule of Marinol, a synthetic form of cannabis, each night as prescribed.
In 2016, Bride Brook recruited Nicole to serve as its director of recreational therapy and offered her the job during the in-person interview. The next day, she accepted the position. Days later, as part of the employment process, Bride Brook required Nicole to submit to a routine preemployment drug screen.
Before submitting to the drug screen, Nicole disclosed her PTSD and explained that she was taking prescription marijuana as a “qualifying patient” under Connecticut’s medical marijuana statute. She then showed Bride Brook her registration certificate and explained that she took Marinol only in the evening before bed, and therefore, she was never impaired during the workday. She also offered to provide additional medical documentation, but Bride Brook didn’t take her up on the offer.
When Nicole’s test came back positive for cannabis, Bride Brook rescinded its job offer, citing the positive result as its justification. Nicole then sued Bride Brook for violating the antidiscrimination provisions contained in Connecticut’s medical marijuana statute.
In its defense, Bride Brook argued that Nicole’s lawsuit should be thrown out despite the protections she is afforded under Connecticut’s medical marijuana statute because marijuana use remains illegal under federal law, and federal law trumps state law. Specifically, Bride Brook argued that marijuana use is illegal under the CSA, the Americans with Disabilities Act (ADA), and the Food, Drug and Cosmetic Act. In rejecting that argument, the judge noted:
This lawsuit calls upon me to decide if federal law preempts Connecticut law. In particular, I must decide if federal law precludes enforcement of a Connecticut law that prohibits employers from firing or refusing to hire someone who uses marijuana for medicinal purposes. I conclude that the answer to that question is “no” and that [a job applicant] 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 court’s decision forges new ground by departing from the reasoning set forth in a 2010 decision in which the Oregon Supreme Court upheld the termination of an employee based on his palliative marijuana use.
In Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., the Oregon Supreme Court held that federal law prevailed over the protections afforded under Oregon’s medical marijuana statute and affirmed the employer’s termination decision because the employee’s marijuana use was “illegal” under federal law. Noffsinger v. SSC Niantic Operating Company, LLC, SSC.
Although groundbreaking, the Noffsinger opinion isn’t the only recent case to pose a conundrum for employers over employees’ use of medical marijuana. In Barbuto v. Advantage Sales & Marketing, LLC, the Massachusetts Supreme Court overturned a ruling by a lower court and determined that Massachusetts employees who have a legal prescription for medical marijuana can sue their employers for disability discrimination if they are fired solely because they use the drug.
These recent court decisions highlight the pace at which attitudes toward medical marijuana use continue to evolve, making employees’ legal use of the drug an issue with which employers will need to grapple. The Noffsinger decision isn’t binding on other courts, but it could still inform their thinking on the issue.
Despite the workplace protections afforded to users of medical marijuana, job performance and safety risks remain valid concerns for employers. Employers in Connecticut, Massachusetts, and other states with medical marijuana statutes should take this opportunity to review their drug policies to ensure they comply with existing law.