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Court for the District of Connecticut denied a motion to dismiss state law claims by an individual whose job offer was rescinded as a result of her testing positive for marijuana.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 The day before Plaintiff expected to start work, she was informed that the offer was rescinded based on the fact that she tested positive for the use of marijuana.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