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Court for the District of Connecticut denied a motion to dismiss state law claims by an individual whose job offer was rescinded as a result of her testing positive for marijuana.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  The day before Plaintiff expected to start work, she was informed that the offer was rescinded based on the fact that she tested positive for the use of marijuana.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
Continue Reading U.S. District Court for the District of CT Determines that Connecticut’s Medical Marijuana Law Protects Qualifying Patients from Workplace Discrimination

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
Continue Reading Supreme Judicial Court’s Decision in Barbuto vs. Advantage Sales & Marketing LLC and Another is Contrary to Federal Law, Marks Significant Departure from Rulings in Other States