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Court for the District of Connecticut denied a motion to dismiss state law claims by an individual whose job offer was rescinded as a result of her testing positive for marijuana.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  The day before Plaintiff expected to start work, she was informed that the offer was rescinded based on the fact that she tested positive for the use of marijuana.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

As the qualified use of medical marijuana to treat illnesses becomes more common and courts become more willing to extend legal protections to medical marijuana patient/employees, workers’ compensation is likely to become another focus of litigation.  One potential argument would be that if an employees’ healthcare provider certifies, recommends, or prescribes (depending on the character of the medical marijuana act at issue) the use of medical marijuana as part of a course of treatment, the treatment is reasonable and necessary, and employers and their respective workers’ compensation insurer are therefore responsible for providing it.

Few courts have addressed this issue, but those opinions that exist have tended to require employers to reimburse employees who have incurred workplace injuries and seek reimbursement for medical marijuana that is purchased to treat the underlying injury (as long as they are qualified patients and a workers’ compensation court determines that the treatment is reasonable and necessary).  In one of the few cases on the subject, the New Mexico Court of Appeals held that marijuana may be a “reasonable and necessary” medical treatment for a workplace injury, and if a treatment is reasonable and necessary, the employer and its insurer are responsible for paying the bill.  See Vialpando v. Ben’s Automotive Services, 2014-NMCA-084, 331 P.3d 975 (N.M. Ct. App.), cert. denied331 P.3d 924 (N.M. 2014); see also Lewis v. American Gen. Media, 355 P.3d 850, 856-58 (N.M. App. 2015) (rejecting challenge to reimbursement for medical marijuana under Workers’ Compensation Act based on federal preemption); cf. Maez v. Riley Indus., 347 P.3d 732, 735-37 (N.M. App. 2015) (finding sufficient evidence that medical marijuana was medically necessary).

In Vialpando, the claimant, George Vialpando, injured his back in a work-related accident in 2000 while employed by Ben’s Automotive Services (“Ben’s Automotive”), and was not able to find relief through traditional drugs and treatment. His doctor opined that Mr. Vialpando had “some of the most extremely high intensity, frequency and duration of pain, out of all of the thousands of patients I’ve treated within my seven years practicing medicine.”  Thereafter, in 2013, Vialpando was certified by his healthcare providers to become a patient in the New Mexico medical marijuana program. The program allows a qualifying patient to purchase marijuana after having secured a certification from a New Mexico licensed health practitioner that the subject individual is suffering from a debilitating medical condition and that the potential health benefits of the medical use of marijuana would likely outweigh the health risks posed by its use.

Vialpando then applied for approval from the workers’ compensation court to have the medical marijuana paid for by his former employer.  The Court approved his application, determined that the treatment was, in fact, reasonable and necessary, and ordered Ben’s Automotive
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This article is Part Three of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series.

A few months before the Barbuto opinion, see Parts 1 and 2, a Rhode Island court issued a summary judgment ruling making it easier for employees to claim employment discrimination resulting from their status as qualifying medical marijuana patients.  See Callaghan v. Darlington Fabrics Corp., 2017 WL 2321181 (R.I. Super. May 23, 2017).  Judge Licht of the Rhode Island Superior Court issued an opinion in which he discussed the intent of Rhode Island’s General Assembly in enacting the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, G.L. 1956 §§ 21-28.6-1 et seq. (the “Hawkins-Slater Act” or “RIMMA”).  Plaintiff Christine Callaghan alleged that because she held a medical marijuana card, Defendants Darlington Fabrics Corporation (“Darlington”) and the Moore Company (collectively, “Defendants”) had discriminated against her with respect to hiring for an internship position.  See id. at 1.

The material facts forming the foundation of Ms. Callaghan’s claims were not disputed by the parties.  Plaintiff needed to complete an internship to fulfill the requirements of her Master’s program at the University of Rhode Island.  Id.  Ms. Callaghan’s professor directed her to Darlington, a division of Moore Company, where Plaintiff met with Darlington’s Human Resources Coordinator, Karen McGrath, on June 30, 2014.  Id.  After Plaintiff was required to sign a Fitness for Duty Statement, which acknowledged that she would have to take a drug test before being hired, Plaintiff advised Ms. McGrath that she held a medical marijuana card authorized by the RIMMA.  Id.

During a conference call on July 2, 2014, Ms. McGrath and a colleague asked Plaintiff whether she was currently using medical marijuana.  Plaintiff responded affirmatively, explained that she would test positive for marijuana, and informed Darlington’s employees that she was allergic to other pain medications and would neither use nor bring medical marijuana with her into the workplace.  Plaintiff did not receive an internship.

Plaintiff then filed a three-count complaint on November 12, 2014. Count I sought a declaration that the “failure to hire a prospective employee based on his or her status as a medical marijuana card holder and user is a violation of the” Hawkins-Slater Act.  See id. at 2 Counts II and III sought damages: Count II alleged Defendants’ conduct violated the Rhode Island Civil Rights Act (RICRA), G.L. 1956 §§ 42-112-1 et seq.; and Count III alleged violations of the Hawkins-Slater Act due to employment discrimination.  See id.   Defendant moved for summary judgment on all three counts under Superior Court Rules of Civil Procedure 56.  Plaintiff filed a cross-motion for summary judgment on Counts I and III, and otherwise opposed Defendants’ motion on Count II.  See id. at 1.

The Court first endeavored to determine whether § 21-28.6-4(d) of the RIMMA, which provides that “No school, employer, or landlord may refuse to enroll, employ,
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This article is Part Two of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series. Read Part One here.

The Supreme Judicial Court’s ruling in Barbuto marks a significant departure from case law arising under the medical marijuana laws of other states, and in particular, the way in which other courts have interpreted conflicting federal law related to the possession, use, cultivation or sale of marijuana.

The Federal Controlled Substances Act (“FFCSA”) prohibits any and all use of marijuana.  See 21 U.S.C. §§ 802(16), 812(c), 844(a) (defining marijuana, classifying marijuana as a Schedule I drug, and prohibiting possession of controlled substances, which includes all Schedule I drugs).  All elements of marijuana are encompassed within the FCSA’s definition of marijuana.  See 21 U.S.C. § 802(16) (“The term ‘marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.”).  Significantly, the FCSA does not provide an exception for the use of medical marijuana or medical marijuana derivatives. Ergo, the use of medical marijuana and all associated materials, in any form whatsoever, are illegal under federal law.  See 21 U.S.C. §§ 802(16), 812(c), 844(a) (defining marijuana, classifying marijuana as a Schedule I drug, and prohibiting possession of controlled substances for all Schedule I drugs).

The FCSA’s blanket proscription of marijuana also carries over to federal disability law. The FCSA precludes employees (regardless of whether they are qualifying medical marijuana patients under state law) from commencing discrimination claims under federal law for adverse actions taking by employers as a result of medical marijuana use.  See 42 U.S.C. § 12210(a) (2012) (“For purposes of this chapter, the term ‘individual with a disability’ does not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.”); see also 21 U.S.C §§ 802(16), 812(c), 844(a) (establishing illegality of marijuana in any form).  If not for this clear federal embargo on such claims, employees would most likely seek relief through the Americans with Disabilities Act (“ADA”).  See 42 U.S.C. § 12112(b)(5)(B) (2012) (creating private cause of action arising under federal law for an individual with a disability who is denied “employment opportunities and is an otherwise qualified individual”).

The ADA provides a federal claim for disabled employees who are discriminated against in their place of employment because of a disability.  See 42 U.S.C. § 12102 (2012) (defining “disability” as
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This article is Part One of our Medical Marijuana and the Workplace: Recent Decisions from New England Courts Provide Significant Protections to Medical Marijuana Patient Employees Five-Part Series

In Cristina Barbuto vs. Advantage Sales and Marketing, LLC, & another, SJC-12226 (July 17, 2017), slip opinion[1], the Supreme Judicial Court of the Commonwealth of Massachusetts was confronted with Plaintiff Cristina Barbuto’s (hereinafter, “Plaintiff” or “Ms. Barbuto”) direct appeal of the Superior Court’s Decision to grant, in part, Defendant Advantage Sales and Marketing, LLC’s (hereinafter, “ASM”) and Defendant Joanna Meredith Villaruz’s (hereinafter, “Ms. Villaruz”) (collectively, “Defendants”), Motion to Dismiss her Complaint.  The Complaint flowed from Plaintiff’s termination from her employment with ASM as a result of her testing positive for marijuana in connection with a mandatory drug test.  See id. at 4.

Ms. Barbuto was offered and accepted a job from ASM in the late summer of 2014.  See id. at 3.  After she accepted the position, an ASM representative communicated to Ms. Barbuto that she would be required to take a mandatory drug test.  See id.  Ms. Barbuto advised the ASM employee that she would test positive for marijuana.  See id.  She further explained that she suffered from Crohn’s disease and that her physician had provided her with a written certification that allowed her to use marijuana for medicinal purposes, which rendered her a qualifying medical marijuana patient under Massachusetts law.  See id.  Ms. Barbuto advised the ASM employee that she did not use marijuana daily and agreed that she would not consume it before work or at work. See Barbuto, supra, slip opinion at 3.

Thereafter, the ASM representative advised her that such use would not preclude her employment at ASM, alerted her that this would be confirmed with ASM and later provided her with confirmation that her lawful medical use of marijuana would not be an issue with the company.  See id. at 4

On September 5, 2014, Ms. Barbuto submitted a urine sample for the mandatory drug test. On September 11th, she participated in an ASM training program wherein she received a uniform and her job assignment, and she later completed her first day of work—without use of marijuana before or during her shift.  See id.  Later that evening, Ms. Villaruz, ASM’s Human Resources representative, informed Ms. Barbuto that she was being terminated as a result of testing positive for marijuana and also advised Plaintiff that ASM did not care if Ms. Barbuto used marijuana to treat her medical condition because “we follow federal law, not state law.”  See id.

After her termination, Plaintiff filed a verified charge of discrimination against Defendants with the Massachusetts Commission Against Discrimination (“MCAD”), which was later withdrawn prior to her filing of a Complaint in Superior Court.  See id. at 4-5.  The Complaint alleged six (6) distinct Counts: (1) handicap discrimination, in violation of G. L. c. 151B, § 4 (16); (2) interference with her
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