In a recent decision affirming summary judgment in favor of defendant Human Resources Agency of New Britain, Inc. (the “Agency”), the Connecticut Appellate Court (decision.pdf) provided employers with useful guidance about managing disabled employees who are also qualified medical marijuana users, and appropriately requiring reasonable suspicion drug testing.

Background

In early 2018, the Agency hired Alyssa Bartolotta (“Bartolotta”) as a teaching assistant in its early childhood division. As part of her onboarding, Bartolotta acknowledged receipt of an employee handbook that contained a drug free work policy prohibiting, among other things, the use of “controlled substances or alcohol in the workplace,” and further providing that violations of its drug free workplace policy could result in disciplinary action, including termination. 

Although Bartolotta suffers from epilepsy, she did not inform the Agency until after she experienced a seizure at work several months after she began working. Following this seizure, the Agency developed a protocol for Bartolotta, ensuring that she worked with another teacher or teaching assistant at all times and permitting her to leave for the day whenever she experienced a seizure. Subsequently, Bartolotta made a request, accompanied by a doctor’s note, that she be permitted to store Valium in the school nurse’s office and that the nurse be permitted to administer it to her if she experienced another seizure at work. The Agency denied her request on the grounds that the nurse lacked authorization to administer medication and was only on site two days a week, but nonetheless permitted Bartolotta to bring her Valium to work and to use it, if needed.

On January 2, 2019, another teacher observed Bartolotta call a child by the wrong name. Bartolotta told the teacher that she was “just out of it.” The teacher further reported that Bartolotta confided to her that she used medical marijuana and that “her head is just not right from it yet.” The teacher became concerned about Bartolotta’s continued presence in the classroom with young children and notified a supervisor. 

Thereafter, the Agency conducted an investigation into Bartolotta’s suspected drug use. Six days later, on January 8, 2019, the Agency’s Education Manager and Human Resources Director interviewed Bartolotta, who admitted that she had previously reported to work impaired and believed that she had taken “too much medical marijuana.” Bartolotta explained that her doctor prescribed her medical marijuana to be taken at 8pm each night, and that she believed that the effects would have worn off by the time she reported for work. She then presented her medical marijuana use card to the Agency. During the investigation, another teacher reported that during the previous two weeks Bartolotta had appeared “forgetful, droopy, and unsteady on her feet.” This teacher did not report her observations to the Agency at the time. Another teacher wrote a letter memorializing a conversation with Bartolotta in which she admitted that she was a medical marijuana user.

Although Bartolotta did not admit to being impaired on the day of the interview, the Agency nevertheless suspended Bartolotta without pay and directed her to submit to a drug test. The drug test came back positive for Valium, but negative for marijuana. After the test, Bartolotta provided a copy of her doctor’s note explaining that she had a card to use medical marijuana at 8pm each evening for anxiety and seizures. The Agency thereafter terminated Bartolotta’s employment on the basis of her admission that she came to work impaired because of the use of medical marijuana, noting its obligation to protect the children within its care.

Bartolotta sued, claiming that the Agency had: 1) discriminated against her on the basis of her disability; 2) failed to accommodate her disability; 3) violated the Connecticut Palliative Use of Marijuana Act, § 21a-408p; and 4) conducted an unlawful drug test under Conn. Gen. Stat. § 31-51x, because it lacked reasonable suspicion to conduct the drug test. The Agency moved for summary judgment, which was granted by the trial court. Bartolotta appealed and the Connecticut Appellate Court affirmed the dismissal.

The Appellate Court Decision

Palliative Use Statute

The Court first addressed Bartolotta’s claims regarding the Palliative Use Statute, noting that while it prohibits employers from disciplining employees “solely” on the basis of their status as a qualified medical marijuana user, the statute specifically allows employers to prohibit employees from reporting to work under the influence of intoxicating substances during work hours. Acknowledging that Bartolotta was a qualified medical marijuana user, the Court nonetheless affirmed the trial court’s finding that the Agency’s termination of her employment for admittedly reporting to work under the influence of marijuana was lawful. The Court further noted that not only was her termination not “solely” due to her status as a medical marijuana user, but the Agency had no knowledge of her marijuana use when it initiated its investigation. At the time that her co-workers reported her unusual behavior, Bartolotta had not yet disclosed her status as a medical marijuana card holder.

Reasonable Suspicion Drug Testing

In affirming the dismissal of Bartolotta’s claim that the Agency lacked reasonable suspicion to require her to submit to a drug test, the Court observed that although “reasonable suspicion” is not defined in the statute, the Connecticut Supreme Court has interpreted it to require “specific and articulable factors” and “rational inferences” based on “the collective knowledge of the employer.” Using this standard, the Court upheld the trial court’s finding that even though there was no indication that Bartolotta was impaired on the day that she was required to take a drug test, the employer’s cumulative information concerning her behavior from co-workers, and her own admissions regarding her prior impairment at work, constituted reasonable cause for the drug test. The Court held that Bartolotta’s colleagues’ reports that she was “forgetful, droopy, and unsteady on her feet,” that she called a child by its incorrect name, and admitted to her colleagues that she was “out of it,” constituted sufficient reasonable cause to require her to submit to a drug test six days after the reported incident. The Court further determined that the trial court was correct in finding that the Agency’s decision to terminate her employment was lawful because it was based on her admission of prior intoxication in the workplace, not on the results of the reasonable suspicion drug test, which was negative for marijuana.

Disability Discrimination and Failure to Accommodate

The Court also affirmed the trial court’s determination that the Agency had neither discriminated against Bartolotta on the basis of her disability, nor had it failed to accommodate her disability. The Court noted that while several of Bartolotta’s claims were time-barred, even if they were not, there was no evidence that the Agency had discriminated against Bartolotta on the basis of her epilepsy because, as Bartolotta admitted, it had adopted protocols to accommodate her disability by ensuring she never worked alone, permitting her to leave work following a seizure as needed, and permitting her to possess and use Valium while at work. The Court further observed that Bartolotta had not disclosed that she was a medical marijuana user prior to the incident, nor had she requested an accommodation in connection with her medical marijuana use either prior to or after the incident.

Employer Takeaways

The Court confirmed an employer’s right to prohibit employees from reporting to work under the influence of intoxicating substances, regardless of their status as a medical marijuana user. It is critical for employers to note, however, that while reporting to work under the influence of any intoxicating substance, including medical marijuana, can be prohibited, an employee’s status as a qualified medical marijuana user alone cannot be used as grounds for adverse action. While employers should be prepared to consider reasonable accommodations for disabilities that may be treated by medical marijuana, they have no obligation to permit employees to report for work under its influence. 

In addition, employers must take care to ensure that drug testing of current employees for reasonable suspicion is supported by specific and articulable factors and rational inferences. Although the Bartolotta Court permitted reasonable suspicion to be based on Bartolotta’s admissions, and the observations of colleagues that occurred a week or more prior to test, in the typical scenario those factors should exist contemporaneously with the referral for a drug test. Prior to taking any potentially adverse action regarding a qualified medical marijuana user or requiring an employee to submit to a reasonable suspicion drug test, employers are advised to consult with counsel.