This article is Part Five of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series. See Parts One, Two, Three and Four for reference.
A federal court in Connecticut has continued the recent trend of New England courts recognizing a cause of action under state law for patient-employees who are allegedly discriminated against due to their status as qualifying medical marijuana patients. In Noffsinger v. SSC Niantic Operating Co. LLC, No. 3:16-CV-01938(JAM), 2017 WL 3401260 (D. Conn. Aug. 8, 2017), the United States District Court for the District of Connecticut denied a motion to dismiss state law claims by an individual whose job offer was rescinded as a result of her testing positive for marijuana. Connecticut enacted a medical marijuana act in 2012—the Palliative Use of Marijuana Act (“PUMA”), which allows the use of medical marijuana by “qualifying patients” with certain debilitating conditions and expressly prohibits discrimination against qualifying patients by schools, landlords and employers. See Conn. Gen. Stat. § 21-a-408p(b).
Plaintiff Katelin Noffsinger was diagnosed with post-traumatic stress disorder in 2012 and became a qualifying patient under PUMA in 2015. Thereafter, she was recruited for and offered the position of director of recreational therapy at a nursing facility in Connecticut in 2016, and immediately accepted the offer.
Prior to starting her employment, Ms. Noffsinger was advised that she would need to take a pre-employment drug test. She informed a representative of the defendant employer that she suffered from PTSD and was prescribed medical marijuana as a qualifying patient pursuant to PUMA, and provided her employer with a urine sample for the drug test. Plaintiff further advised that she only consumed a capsule of synthetic form of marijuana, Marinol, in the evening prior to bed, and that she would never be under its influence in the workplace. The day before Plaintiff expected to start work, she was informed that the offer was rescinded based on the fact that she tested positive for the use of marijuana.
Plaintiff filed suit alleging three counts; namely, a violation of PUMA’s anti-discrimination provision; wrongful rescission of a job offer in violation of public policy; and negligent infliction of emotional distress. The employer removed the matter to Federal court. The employer’s main defense was that PUMA was preempted by federal statute; to wit, the Controlled Substances Act (“CSA”), the Americans with Disabilities Act (“ADA”), and the Food, Drug, and Cosmetic Act (“FDCA”).
The Court first addressed the employer’s preemption argument and its underpinnings in the Supremacy Clause of the U.S. Constitution. The Court discussed four potential bases for federal preemption by Congress: (1) express preemption; (2) preemption where Congress has manifested an intent to occupy the bounds of a particular regulatory field (“field preemption”); (3) preemption of state law that stands as an obstacle to the objectives of federal law (“obstacle preemption”); and (4) preemption where compliance with both the federal and state law is impossible (“conflict preemption”). The employer argued that because PUMA was an obstacle to the objectives of Congress expressed in the CSA, ADA, and FDCA, those three federal statutes preempted PUMA.
The Court opined that obstacle preemption is applicable where the state law in question gives rise to an actual conflict with an overriding congressional objective. Thus, there is no preemption unless that the conflict is direct and in such a manner that the two acts cannot be reconciled or consistently applied.
The employer argued that the CSA preempts PUMA because by authorizing the medical use, possession, cultivation, sale, dispensing, and distribution of marijuana, PUMA directly ran afoul of the main objective of the CSA—to make it a federal crime to use, possess, or distribute controlled substances (in this circumstance, marijuana). The employer explained that the CSA classifies marijuana as a Schedule I substance, and allows no exceptions for medical use. The Court regarded the employer’s argument as too broad and instead focused on PUMA’s anti-discrimination provision, rather than PUMA in its entirety. The employer had cited several cases arising under the medical marijuana laws of other states that have been discussed in previous installments of this series. See Emerald Steel Fabricators, Inc. v. Bureau of Labor & Indus., 348 Or. 159, 230 P.3d 518 (2010); Coats v. Dish Network, LLC, 2015 CO 44, 350 P.3d 849 (Colo. 2015); Casias v. Wal-Mart Stores, Inc., 695 F.3d 428 (6th Cir. 2012); Stanley v. County of Bernalillo Com’rs, 2015 WL 4997159 (D.N.M. 2015); see also Part 2. However, none of the cases relied upon interpreted a law with an express anti-discrimination provision, and the Court distinguished them on that basis. The Court then directed its attention to the Rhode Island Superior Court’s recent decision holding that the CSA did not preempt the specific anti-discrimination provision of Rhode Island’s medical marijuana law. See Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181 (R.I. Super. Ct. 2017); see also Part 3. The Court concluded that the provision at issue in Connecticut’s PUMA was similar to the statute that had survived a preemption challenge in Callaghan, and that both statutes regulate the employment relationship—an area in which states have broad authority to regulate—while the CSA does not contain a specific prohibition on employers hiring applicants who use controlled substances.
The employer also argued that the ADA preempts PUMA because the ADA occupies the area of protecting those with disabilities from employment discrimination. The employer noted that the ADA contains a specific provision stating that an employee or applicant who uses drugs illegally is not a “qualified person with a disability” protected by the ADA, when the employer acts on the basis of that person’s illegal drug use 42 U.S.C.A. § 12114(a). The ADA also specifically authorizes a covered employer to prohibit the illegal use of drugs and the use of alcohol in the workplace by employees. 42 U.S.C.A. § 12114(c)(1). In addition, the ADA provides that drug testing is not a violation of the ADA, 42 U.S.C. A. § 12114(d), and also provides that an employer may “hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.” 42 U.S.C.A. 12114(c)(4).
The Court held that the ADA did not preempt PUMA’s anti-discrimination provision. The Court first emphasized that the matter before it did not involve the use of marijuana by Plaintiff in the workplace, and that PUMA explicitly declines to authorize workplace use of medical marijuana. See Conn. Gen. Stat. §§ 21a-408p(b)(3), 21a-408p(b)(2). The Court disposed of the “qualification” arguments by explaining that the wording of the ADA also states that the qualification standard must be related to an individual’s job performance and their behavior in the workplace. The Court found that there was no contention that Plaintiff’s use of medical marijuana would adversely affect her performance. Thus, the Court held that the employer had failed to show any conflict between the ADA and PUMA’s anti-discrimination provision that would support a finding of preemption. Finally, the Court rejected the employer’s assertion that the FDCA preempted PUMA’s anti-discrimination provision, reasoning that because the FDCA does not regulate employment, PUMA does not conflict or pose an obstacle to the objectives of the FDCA.
The employer also argued that PUMA’s anti-discrimination provision did not create a private cause of action upon which Plaintiff could rely. Thus, as with the Rhode Island statute at issue in Callaghan, see Part 3, the question was whether an implied right of action exists under PUMA. The Court reasoned that Plaintiff, as a qualifying patient, certainly falls within the class of those the statute was enacted to benefit, and that there was no indication that the legislature meant to deny to patients such a right. Allowing a private cause of action would help to effectuate the legislative goal of combatting workplace discrimination for medical marijuana patients. The Court therefore held that a private cause of action under PUMA for work place discrimination existed and that to state otherwise would render the protection a nullity.
The Court also rejected an Equal Protection argument proffered by the employer, because the legislature could, on a rational basis, favor those who are qualifying patients compared to those that use marijuana illicitly and for non-medical purposes. The Court did dismiss the claim for wrongful discharge in violation of public policy, as the private cause of action recognized by the court served to vindicate the public policy at issue. However, the negligent infliction of emotional distress claim was allowed to remain.
Connecticut employers should be reviewing their drug testing policies as they relate to applicants and current employees, as well as informing executives, supervisors, and managers of their obligations under PUMA’s anti-discrimination provision. Schools and landlords should also exercise caution, as PUMA’s anti-discrimination provision applies to them as well.