Federal Laws Do Not Preempt Connecticut Law Providing Employment Protections to Medical Marijuana Users

Connecticut employees using medical marijuana for certain debilitating medical conditions as allowed under Connecticut law for “qualified users” are protected under state law from being fired or refused employment based solely on their marijuana use. Employers who violate those protections risk being sued for discrimination, according to a recent federal district court decision.

Background

In Noffsinger v. SSC Niantic Operation Company (3:16-cv-01938; D. Conn. Aug. 8, 2017), the federal district court ruled that “qualified users” are protected from criminal prosecution and are not subject to penalty, sanction or being denied any right or privilege under federal laws, such as the Controlled Substances Act (CSA), the Americans with Disabilities Act (ADA) and the Food, Drug and Cosmetic Act (FDCA), because the federal laws do not preempt Connecticut’s Palliative Use of Marijuana Act (PUMA).

PUMA prohibits employers from refusing to hire, fire, penalize, or threaten applicants or employees solely on the basis of being “qualified users” of medical marijuana. PUMA exempts patients, their caregivers and prescribing doctors from state penalties against those who use or distribute marijuana, and it explicitly prohibits discrimination by employers, schools and landlords.

In Noffsinger, Plaintiff was employed as a recreational therapist at Touchpoints, a long term care and rehabilitation provider, and she was recruited for a position as a director of recreational therapy at Bride Brook, a nursing facility. After a phone interview, she was offered the position at Bride Brook and accepted the offer, and she was told to give notice to Touchpoints, which she did to begin working at Bride Brook within a week. Plaintiff scheduled a meeting to complete paperwork and routine pre-employment drug screening for Bride Brook, and at the meeting, she disclosed her being qualified to use marijuana for PTSD under PUMA. The job offer was later rescinded because she tested positive for cannabis; in the meantime, Plaintiff’s position at Touchpoints was filled, so she could not remain employed there.

Litigation

Plaintiff sued for violation of PUMA’s anti-discrimination provisions, common law wrongful rescission of a job offer in violation of public policy and negligent infliction of emotional distress. Defendant filed a Rule 12(b)(6) pre-answer motion to dismiss based on preemption under CSA, ADA, and FDCA. The federal court denied the motion and ruled that PUMA did not conflict with the CSA, ADA or FDCA, because those federal laws are not intended to preempt or supersede state employment discrimination laws. The court concluded that CSA does not make it illegal to employ a marijuana user, and it does not regulate employment practices; the ADA does not regulate non-workplace activity or illegal use of drugs outside the workplace or drug use that does not affect job performance; and the FDCA does not regulate employment and does not apply to PUMA’s prohibitions.

The court’s decision is notable in that it is the first federal decision to determine that the CSA does not preempt a state medical marijuana law’s anti-discrimination provision, and reaches a different result than the District of New Mexico, which concluded that requiring accommodation of medical marijuana use conflicts with the CSA because it would mandate the very conduct the CSA proscribes. The Noffsinger decision supplements a growing number of state court decisions that have upheld employment protections for medical marijuana users contained in other state statutes. These decisions stand in stark contrast to prior state court decisions California, Colorado, Montana, Oregon, and Washington that held that decriminalization laws – i.e., statutes that do not contain express employment protections – do not confer a legal right to smoke marijuana and do not protect medical marijuana users from adverse employment actions based on positive drug tests.

Key Takeaways

Employers may continue to prohibit use of marijuana at the workplace; and qualified users who come to work under the influence, impaired and unable to perform essential job functions are subject to adverse employment decisions. Employers in Connecticut, however, may risk being sued for discrimination for enforcing a drug testing policy against lawful medical marijuana users.  In those cases, employers may have to accommodate off-duty marijuana use, and may take disciplinary action only if the employee is impaired by marijuana at work or while on duty.

It remains unclear how employers can determine whether an employee is under the influence of marijuana at work. Unlike with alcohol, current drug tests do not indicate whether and to what extent an employee is impaired by marijuana. Reliance on observations from employees may be problematic, as witnesses may have differing views as to the level of impairment, and, in any event, observation alone does not indicate the source of impairment. Employers following this “impairment standard” are advised to obtain as many data points as possible before making an adverse employment decision.

All employers – and particularly federal contractors required to comply with the Drug-Free Workplace Act and those who employ a zero-tolerance policy – should review their drug-testing policy to ensure that it: (a) sets clear expectations of employees; (b) provides justifications for the need for drug-testing; and (c) expressly allows for adverse action (including termination or refusal to hire) as a consequence of a positive drug test.

Additionally, employers enforcing zero-tolerance policies should be prepared for future challenges in those states prohibiting discrimination against and/or requiring accommodation of medical marijuana users. Eight other states besides Connecticut have passed similar medical marijuana laws that have express anti-discrimination protections for adverse employment actions: Arizona, Delaware, Illinois, Maine, Nevada, New York, Minnesota and Rhode Island. Those states may require the adjustment or relaxation of a hiring policy to accommodate a medical marijuana user. Additionally, courts in Massachusetts and Rhode Island have permitted employment discrimination lawsuits filed by medical marijuana users to proceed.

Finally, employers should be mindful of their drug policies’ applicability not only to current employees, but also to applicants.

This post was written by David S. Poppick & Nathaniel M. Glasser of Epstein Becker & Green, P.C.  ©2017. All rights reserved.
For more Health Care Law legal analysis go to The National Law Review

Medical Marijuana Need Not Be Accommodated by New Mexico Employers

New Mexico employers are not required to accommodate an employee’s use of medical marijuana, according to the federal district court in New Mexico. In dismissing an employee’s discrimination lawsuit, the Court recently ruled that an employee terminated for testing positive for marijuana did not have a cause of action against his employer for failure to accommodate his use of medical marijuana to treat his HIV/AIDS. Garcia v. Tractor Supply Co., No. 15-735, (D.N.M. Jan. 7, 2016).

New Employee Terminated For Positive Drug Test 

When Rojerio Garcia interviewed for a management position at a New Mexico Tractor Supply store, he was up front about having HIV/AIDS. He also explained that he used medical marijuana under the state’s Medical Cannabis Program as a treatment for his condition upon recommendation of his doctor.

Tractor Supply hired Garcia and sent him for a drug test; Garcia tested positive for cannabis metabolites. He was terminated from employment. Garcia filed a complaint with the New Mexico Human Rights Division alleging unlawful discrimination based on Tractor Supply’s failure to accommodate his legal use of marijuana to treat his serious medical condition under New Mexico law. 

No Affirmative Accommodation Requirements in New Mexico’s Medical Marijuana Law

Garcia argued that New Mexico’s Compassionate Use Act (CUA), which permits the use of marijuana for medical purposes with a state-issued Patient Identification Card, should be considered in combination with the state Human Rights Act, which, among other things, prohibits employers from discriminating on the basis of a serious medical condition. He argued that the CUA makes medical marijuana an accommodation promoted by the public policy of New Mexico. Accordingly, Garcia asserted that employers must accommodate an employee’s use of medical marijuana under the New Mexico Human Rights Act.

The Court disagreed. It stated that, unlike a few other states whose medical marijuana laws impose an affirmative obligation on employers to accommodate medical marijuana use, New Mexico’s law did not. Consequently, Garcia did not have a claim under the CUA.

The Court then rejected Garcia’s arguments that his termination violated the Human Rights Act. The Court found that Garcia was not terminated because of, or on the basis of, his serious medical condition. He was terminated for failing a drug test. The Court stated that his use of marijuana was “not a manifestation” of his HIV/AIDS, so Tractor Supply did not unlawfully discriminate against Garcia when it terminated him for his positive drug test. 

Court Rejected Public Policy Arguments 

Garcia argued that the public policy behind the state’s legalization of medical marijuana meant that employers should be required to accommodate an employee’s legal use of marijuana. The Court rejected the argument, noting that marijuana use remains illegal for any purpose under federal law. It stated that if it accepted Garcia’s public policy position, Tractor Supply, which has stores in 49 states, would have to tailor its drug-free workplace policy for each state that permits marijuana use in some form.

The Court also relied on the fact that the CUA only provides limited state-law immunity from prosecution for individuals who comply with state medical marijuana law. However, Garcia was not seeking state-law immunity for his marijuana use. Instead, he sought to affirmatively require Tractor Supply to accommodate his marijuana use. The Court stated that to affirmatively require Tractor Supply to accommodate Garcia’s drug use would require the company to permit conduct prohibited under federal law. Therefore, the Court ruled that New Mexico employers are not required to accommodate an employee’s use of medical marijuana.

What This Means For Employers

The Tractor Supply decision is consistent with rulings from courts in other states that have similarly ruled that an employer may lawfully terminate an employee who tests positive for marijuana. Although Garcia may appeal this decision, it is difficult to imagine that an appellate court will overturn it as long as marijuana use remains illegal under federal law, and state law does not require a workplace accommodation.

In light of this decision, take time now to review your drug-free workplace and drug testing policies. Make certain that your policies apply to all controlled substances, whether illegal under state or federal law. Clearly state that a positive drug test may result in termination of employment, regardless of whether the employee uses medical marijuana during working hours or appears to be “under the influence” at work. Communicate your drug-free workplace and testing policies to employees and train your supervisors and managers on enforcing the policies in a consistent and uniform manner.

Marijuana in the Workplace: The Growing Conflict Between Drug and Employment Laws

Despite the growing number of states that have legalized the use of marijuana, the drug remains illegal under federal drug laws. The legal landscape is made more confusing when considering the differing levels of employment protection that these state laws offer to marijuana users. With this patchwork of state laws, employers are left to grapple with whether and how to accommodate their employees who use marijuana for medical purposes or for off-duty personal consumption.

The Legal Landscape

Twenty-three states and the District of Columbia have legalized medical and/or recreational use of marijuana. These jurisdictions provide marijuana users with varying levels of protection against employment discrimination. The majority—Alaska, California, Colorado, Georgia, Hawaii, Maryland, Massachusetts, Michigan, Montana, New Jersey, New Mexico, Oregon, Vermont, and Washington—merely decriminalize use. Other jurisdictions—Arizona, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Minnesota, Nevada, New Hampshire, New York, and Rhode Island—in addition to decriminalizing use, also provide statutory protections against discrimination. Some of these jurisdictions even require accommodation of underlying disabilities.

However, marijuana is still classified as a Schedule I drug (high potential for abuse, no acceptable medical use) and remains illegal under the federal Controlled Substance Act (“CSA”). While last year Congress passed a bill to defund the Department of Justice’s efforts to challenge state-legal medical marijuana programs, the Obama administration’s public position is that it “steadfastly opposes legalization of marijuana.”

Federal precedent in this area has provided employers with broad rights to take adverse action against individuals who use marijuana, whether or not for medical purposes and/or protected under state law. For instance, under the Americans with Disabilities Act (“ADA”), courts have held that marijuana users—regardless of the legality of the use under state law—are not qualified individuals with a disability entitled to anti-discrimination protections. See, e.g., James v. City of Costa Mesa, 700 F.3d 394 (9th Cir. 2012).

Employers, however, must be careful not to rely on medical marijuana use as a pretext for firing an employee with an underlying disability. The U.S. Equal Employment Opportunity Commission (“EEOC”) recently took aim at a Michigan-based assisted living center that fired a nursing administrator who used medical marijuana to treat her epilepsy and thus failed a drug test on her second day of work. EEOC v. Pines of Clarkston, Inc., No. 13-CV-14076, 2015 U.S. Dist. LEXIS 55926 (E.D. Mich. Apr. 29, 2015). The district court denied the employer’s motion for summary judgment on the individual’s ADA claim. Although acknowledging that a positive test for medical marijuana constituted a legitimate, non-discriminatory reason for discharge, the district court concluded that the EEOC raised a genuine issue of material fact as to whether the articulated reason was a pretext for disability discrimination, particularly because the employee had been questioned about her disability during her interview and subsequently after the positive drug test. The case eventually settled but should be heeded by employers as a warning that a positive drug test for marijuana may not insulate them from discrimination claims under the ADA.

Unresolved Conflict Between Employer and Employee Rights Under State Law

State law provides greater protections to marijuana users. However, while courts have infrequently addressed the conflict between state law employment protection and marijuana use, those that have considered such issues generally have found in favor of an employer’s right to take adverse action against an employee who tests positive for marijuana.

The Colorado Supreme Court highlighted this issue when, in Coats v. Dish Network, 350 P.3d 849 (Colo. 2015), it held that an employee may be fired for using marijuana even though he legally used the drug off duty. Colorado law prohibits termination for lawful off-duty conduct, and Coats was a registered medical marijuana patient who only consumed marijuana during non-work hours. Nevertheless, because smoking marijuana was still illegal under the federal CSA, the court held that such use did not constitute lawful conduct under the Colorado statute.

The decision in Coats is consistent with earlier decisions in California, Montana, Oregon, and Washington that have held that decriminalization laws do not confer a legal right to smoke marijuana and that employers may take adverse action against users. See Ross v. RagingWire Telecomms., Inc., 174 P.3d 200 (Cal. 2008); Johnson v. Columbia Falls Aluminum Co., LLC, No. 08-0358, 2009 Mont. LEXIS 120 (Mont. 2009); Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 230 P.3d 518 (Or. 2010); Roe v. TeleTech Customer Care Mgmt. (Colo.) LLC, 257 P.3d 586 (Wash. 2011). Of course, statutes in these states have decriminalized marijuana use but do not expressly provide employment protections to users.

Employers must tread more carefully in jurisdictions that grant express protections to marijuana users. Courts in these states have not decided whether an employee’s rights under such a state statute trump the rights of an employer to take adverse action against the use of a drug categorized as illegal under federal law.

Advice for Employers

While many implications of legalizing marijuana use are yet to be decided by the courts, employers clearly may continue to prohibit the on-duty use of, or impairment by, marijuana. Employers, particularly federal contractors required to comply with the Drug Free Workplace Act, also may continue the implementation of workplace drug testing programs.

Employers, however, must treat positive tests for marijuana cautiously. Decisions in California, Colorado, Montana, Oregon, and Washington collectively provide support to take adverse action against employees who use marijuana, recreationally or medicinally, and may suggest that such employer-favorable rulings will issue even from courts reviewing state statutes providing employment protections. Thus, a bright-line approach to discharging or refusing to hire marijuana users may be defensible related to marijuana use. But given the uncertain state of the law, employers should consider taking the following steps to reduce potential liability:

  • Engage in the interactive process to determine whether medical marijuana use can be accommodated.

  • Particularly in jurisdictions providing employment protections for medical marijuana users, engage in a fact-based inquiry to determine whether the individual is a medical marijuana cardholder and whether the job can accommodate the individual’s use of medical marijuana.

  • Develop and/or review policies that expressly address the right to take adverse action upon a finding of marijuana use.

  • When taking such adverse action, document the reasons to avoid a pretext argument.

Of course, employers should work with legal counsel to closely monitor the changing legal landscape in their jurisdictions as this area of unsettled law is ripe for future litigation.

Medical Cannabis in Illinois: What Employers Need to Know

THE MEDICAL CANNABIS PILOT PROGRAM IN ILLINOIS

Is Illinois allowing recreational cannabis use, as is currently the case in Colorado and Washington?
No. The Illinois medical cannabis program is one of the most restrictive regulatory programs in the country, limiting individual usage and industry operations much more than a recreational cannabis state such as Colorado. The Illinois medical cannabis program is a four-year experiment. Illinois government leaders will evaluate a variety of outcomes before deciding whether to restrict, expand or modify the approved uses of cannabis.

How many patients in Illinois will be participating in the pilot program?
Currently, just over 3,000 patients have been approved by the Illinois Department of Public Health to participate in the program. Thousands more are expected to register once the program begins full operations.

How will I know if an employee is approved to participate as a patient in the pilot program?
Employees approved to participate in the program will be issued a State of Illinois identification card verifying registration with the Illinois Department of Public Health.

EMPLOYER CONCERNS

Are employers required to allow patients to use medical cannabis in the workplace?
No. The Illinois medical cannabis law does not require employers to permit employee use of cannabis in the workplace, even when the employee is registered as a patient in the pilot program.

Is permission to use medical cannabis required as a “reasonable accommodation” under the Americans with Disabilities Act?
Although some states have specific language in their laws that answer this question, Illinois law does not appear to include the use of medical cannabis as a required reasonable accommodation under the ADA. Although the underlying debilitating medical condition may qualify an individual for protections under the ADA, whether an employer decides to allow an employee to use medical cannabis as a reasonable accommodation under the ADA will be an individualized determination for the employer to undertake.

Am I required to tolerate medical cannabis use by an employee who works in a safety-sensitive position (i.e., a position in which the employee’s cannabis use could increase the risk of harm to the employee or others)?
No. An employer can enforce a zero-tolerance policy that disallows cannabis use by any employee, such as a physician, who works in a safety-sensitive position.

EMPLOYEE AND CANDIDATE DRUG TESTING

Can I require a medical cannabis patient who is in my employ or a candidate who I am considering hiring to undergo drug testing? What can or should I do if the employee or candidate tests positive?
In Illinois, an employer has discretion to require job candidates (as part of a conditional job offer) and employees to undergo drug testing, as long as the drug testing is conducted in a non-discriminatory manner. The employer also has the option of taking disciplinary action against a current employee who tests positive for a controlled substance (including cannabis), withdrawing an offer of employment issued to a job candidate who tests positive, or taking no action. However, the employer should be consistent in its policies and practices.

If I have contracts with the federal government, am I required to conduct drug tests for medical cannabis for job candidates and/or employees? If so, what am I required or permitted to do if a candidate or employee tests positive for cannabis use?
Some federal government contractors are required to conduct tests for drugs, including cannabis use, for employees and job candidates who are or will be performing certain safety-sensitive or security duties (e.g., owners of nuclear power plants, gas or oil pipelines, airlines and railroads). Action to be taken as a result of a positive drug test will depend on the pertinent circumstances. To ensure compliance with such requirements, employers should consult with an experienced employment law attorney for additional guidance.

Should I review and modify my personnel policies pertaining to drug use and testing? If so, what types of issues should I consider?
Yes, now is an ideal time to review personnel policies involving drug testing and protocols for responding to employee drug use and abuse. Management should carefully consider the company’s approach to drug testing of employees and develop a consistent and transparent plan for responding to drug test results.

© 2015 Much Shelist, P.C.

Colorado Employers Can Fire Workers for Off-Duty Medical Marijuana Use

The Colorado Supreme Court ruled on June 15, 2015, that an employee can be fired for using medical marijuana even though the drug is legal in Colorado and the employee was not at work at the time. The unanimous decision upholds lower courts’ opinions that an employer has the right to terminate an employee for violating a company’s zero-tolerance policy for controlled substances, despite a Colorado law protecting employees from being punished for legal, off-duty activities.

This decision is significant because it confirms an employer’s right to terminate an employee who violates a company’s drug policy, notwithstanding Colorado’s legalization of marijuana. Colorado is one of only four states to date to legalize marijuana for both medical and recreational use. The Court’s ruling, which is similar to a California decision, provides support and guidance for non-Colorado employers who may have employees travelling to Colorado for work or recreation. Other states are in various stages of considering legalizing medical and/or recreational marijuana.

At issue before the state’s highest court was a suit filed by Brandon Coats, a former employee of Dish Network, LLC, whose employment had been terminated by Dish after a random drug test revealed the presence of THC, the psychoactive chemical in marijuana, in Coats’ system. Coats was a registered medical marijuana patient who consumed medical marijuana at home, and after work, and in accordance with his license and Colorado state law.

In his suit against Dish for wrongful termination, Coats argued that the company violated Colorado’s “lawful activities statute,” which makes it an unfair and discriminatory labor practice to discharge an employee based on the employee’s “lawful” outside-of-work activities. Dish filed a motion to dismiss, arguing that Coats’ medical marijuana use was not lawful for purposes of the statute under either federal or state law. The trial court granted Dish’s motion and dismissed Coats’ claim.

The Colorado Court of Appeals, in a split decision, affirmed the lower court’s dismissal of Coats’ lawsuit, but on a different ground. It found that because the use of marijuana is prohibited under the federal Controlled Substances Act, Coats’ conduct was not a “lawful activity” protected by the Colorado statute. The Colorado Supreme Court agreed with the Court of Appeals that “lawful” for purposes of Colorado’s “lawful activities statute” means activities that comply with applicable law, including state and federal law. Because Coats’ use of medical marijuana was unlawful under federal law, it was not protected under the Colorado statute.

Eric Walters and Calvin Matthews also contributed to this article.
© Copyright 2015 Armstrong Teasdale LLP. All rights reserved

New York Implements Medical Marijuana Rules

The New York State Department of Health has issued regulations implementing the State’s medical marijuana law, enacted last July.

Published April 15 in the State Register, the regulations allow the use of marijuana for patients with cancer, AIDS, Lou Gehrig’s disease, Parkinson’s disease, multiple sclerosis, certain spinal cord injuries, epilepsy, inflammatory bowel disease, neuropathies, and Huntington’s Disease, and symptoms including severe or chronic pain, surgeries, severe nausea, persistent muscle spasms and wasting syndrome, who comply with the rules. The Commissioner of Health may add other conditions, symptoms or complications, under the regulations.

In accordance with the law, those patients will be able to use only non-smokable forms or marijuana, to be ingested or vaporized. “Smoking is not an approved route of administration.” However, even vaporization is banned in public places, and in no case may approved medical marijuana be consumed through vaporization in locations where smoking would be prohibited by the State’s Public Health Law, including places of employment. Products authorized by the regulations are restricted to liquids, oils or capsules. Unless the Commissioner approves, approved marijuana products may not be incorporated into edible food products by a registered organization.

Only five businesses or non-profits in the State may be licensed to grow, process of distribute approved marijuana. Each such enterprise may have four dispensing facilities. The Commissioner can consider permitting more dispensing facilities.

While implementation will not be immediate, employers should prepare for responding to employees taking marijuana under the law and regulations.

Authored by:  Roger S. Kaplan of Jackson Lewis P.C.

Massachusetts Announces Significant Changes to the Medical Marijuana Dispensary Program

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

At today’s Massachusetts Public Health Council meeting, Department of Public Health Commissioner Monica Bharel, MD, MPH, announced sweeping changes to the Medical Marijuana Dispensary Program in Massachusetts. The changes follow what Dr. Bharel described as a “top to bottom” review of the application process that has been plagued with difficulties.  The revisions shift the focus of the application process from its current form, which has followed a competitive procurement model, to a licensure focus similar to other health care facilities.   The revised application process will launch on May 15, 2015, and will feature a rolling basis application process. The application review will include a sharp focus on security issues and the background of those involved in the proposed dispensary.  Dr. Bharel noted that this shift will result in a more efficient, straightforward application process and that DPH will strive to make the process more straightforward and more transparent. No regulatory changes are needed, as the changes affect DPH’s process only.

Starting today, DPH will post and update the status of dispensaries in the approval and development “pipeline,” and the number of registered and certified patients on its website.  Those applicants with pending applications will not need to reapply.  DPH will clarify the process to resubmit applications that were previously rejected.

Public Health Council member Harold Cox (Associate Dean of Public Health Practice, Boston University School of Public Health) addressed ongoing legalization efforts – marijuana is legal in four states and the District of Columbia – and suggested that DPH should be proactive in understanding what is happening in those states and how potential legalization would affect Massachusetts’ program.  Public Health Council member Dr. Michele David expressed concern regarding the packaging of marijuana edibles, particularly candy, that may look like ordinary candy to children.

The DPH press release is available here.