A federal court in Connecticut has held that refusing to hire a medical marijuana user who tested positive on a pre-employment drug test violates the state’s medical marijuana law. The Court granted summary judgment to the applicant on her claim for employment discrimination but declined to award her attorneys’ fees or punitive damages. The Court also dismissed her claim for negligent infliction of emotional distress. Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Health & Rehab. Ctr., 2018 U.S. Dist. LEXIS 150453 (D. Conn. Sept. 5, 2018).

Background

Plaintiff Katelin Noffsinger accepted a job offer from Bride Brook, which was contingent on passing a pre-employment drug test. Noffsinger advised that she was a registered qualifying patient who has used medical marijuana since 2015, when she began using it to treat post-traumatic stress disorder. When the drug test came back positive for marijuana, she was not hired because the employer followed federal law holding that marijuana is illegal.

Noffsinger filed a complaint in state court, alleging, among other things, a violation of the Connecticut Palliative Use of Marijuana Act (“PUMA”)’s anti-discrimination provision. The provision states, “[n]o employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient.”

Bride Brook made a motion to dismiss. As discussed in our earlier blog post about this case, the Court held that: (1) PUMA provides a private right of action to aggrieved medical marijuana patients; and, (2) federal law does not preempt PUMA’s prohibition on employers’ firing or refusing to hire qualified medical marijuana patients, even if they test positive on an employment-related drug test. Noffsinger v. SSC Niantic Operating Co., LLC, d/b/a Bride Brook Health & Rehab. Ctr., 273 F.Supp.3d 326 (D. Conn. Aug. 8, 2017). After that decision, the case proceeded with discovery, and then both parties moved for summary judgment.

Federal Drug-Free Workplace Act Did Not Require Withdrawal of the Job Offer

Bride Brook argued that PUMA provides for an exception from the anti-discrimination provision when “required by federal law or required to obtain federal funding.” It argued that the federal Drug-Free Workplace Act barred it from hiring Noffsinger because that law prohibits federal contractors from allowing employees to use illegal drugs. Marijuana is illegal under federal law. The Court rejected that argument because the Drug-Free Workplace Act does not require drug testing and does not regulate employees who use illegal drugs outside of work while off-duty.

Similarly, the Court rejected the argument that hiring Noffsinger would violate the False Claims Act, holding that it would not defraud the federal government to hire an employee who uses medical marijuana outside of work while off-duty.

Bride Brook also argued that it did not violate PUMA because it did not discriminate against Noffsinger based on her status as a medical marijuana user, but rather, it relied on the positive drug test result. The Court dismissed this argument because it would render a medical marijuana user’s protection under the statute a nullity.

While the Court held that the employer had engaged in employment discrimination, it declined to award Noffsinger attorneys’ fees or punitive damages because those types of damages are not expressly recoverable under PUMA. Additionally, the Court dismissed the claim for negligent infliction of emotional distress because the employer did not engage in “unreasonable conduct” and Noffsinger chose to give notice to her prior employer before she had advised Bride Brook of her medical marijuana use.

Implications for Employers

Noffsinger illustrates that employers (including federal contractors) should not rely solely on federal law or their status as a federal contractor when making employment decisions with regard to applicants and employees who use medical marijuana. Courts in Connecticut and certain other states will enforce state law discrimination prohibitions with regard to medical marijuana use.

Employers in Connecticut and elsewhere should consider the marijuana laws affecting their workplaces now, before an issue arises, and adjust their policies as necessary.